Skip to main content

Full text of "Implementation of the Native American Graves Protection and Repatriation Act : hearing before the Committee on Indian Affairs, United States Senate, One Hundred Fourth Congress, first session ... December 6, 1995, Washington, DC"

See other formats


X  S.  HRG.  104-399 

IMPLEMENTATION  OF  THE  NATIVE  AMERICAN 
GRAVES  PROTECTION  AND  REPATRIATION  ACT 


Y  4.  IN  2/11 :  S.  HRG.  104-399 

Inplenentation  of  the  Native  ftneric. . . 

HEARING 

BEFORE  THE 

COMMITTEE  ON  INDIAN  AFFAIRS 
UNITED  STATES  SENATE 

ONE  HUNDRED  FOURTH  CONGRESS 

FIRST  SESSION 

OVERSIGHT  HEARING  ON  PUBLIC  LAW  101-601,  TO  PROVIDE  THE  AU- 
THORITY AND  MECHANISM  FOR  THE  REPATRIATION  OF  NATIVE 
AMERICAN  HUMAN  REMAINS,  FUNERARY  OBJECTS,  SACRED  OBJECTS, 
AND  OBJECTS  OF  CULTURAL  PATRIMONY 


DECEMBER  6,  1995 
WASHINGTON,  DC 


Hfc 


*>#• 
%»..     * 


r(fQ 


U.S.  GOVERNMENT  PRINTING  OFFICE 


££%>. 


2^-074  CC  WASHINGTON   :  1996 


For  sale  by  the  U.S.  Government  Printing  Office 

Superintendent  of  Documents,  Congressional  Sales  Office,  Washington,  DC  20402 

ISBN  0-16-052459-8 


S)     \  S.  HRG.  104-399 

IMPLEMENTATION  OF  THE  NATIVE  AMERICAN 
GRAVES  PROTECTION  AND  REPATRIATION  ACT 


Y  4.  IN  2/1 1 :  S.  HRG.  104-399 

Inplenentation  of  the  Native  fineric. . . 

HEARING 

BEFORE  THE 

COMMITTEE  ON  INDIAN  AFFAIRS 
UNITED  STATES  SENATE 

ONE  HUNDRED  FOURTH  CONGRESS 

FIRST  SESSION 

OVERSIGHT  HEARING  ON  PUBLIC  LAW  101-601,  TO  PROVIDE  THE  AU- 
THORITY AND  MECHANISM  FOR  THE  REPATRIATION  OF  NATIVE 
AMERICAN  HUMAN  REMAINS,  FUNERARY  OBJECTS,  SACRED  OBJECTS 
AND  OBJECTS  OF  CULTURAL  PATRIMONY 


DECEMBER  6,  1995 
WASHINGTON,  DC 


V 


U.S.  GOVERNMENT  PRINTING  OFFICE 
23-074  CC  WASHINGTON  :  1996 


For  sale  by  the  U.S.  Government  Printing  Office 

Superintendent  of  Documents,  Congressional  Sales  Office,  Washington,  DC  20402 

ISBN  0-16-052459-8 


COMMITTEE  ON  INDIAN  AFFAIRS 

JOHN  McCAIN,  Arizona,  Chairman 
DANIEL  K.  INOUYE,  Hawaii,  Vice  Chairman 
FRANK  MURKOWSKI,  Alaska  KENT  CONRAD,  North  Dakota 

SLADE  GORTON,  Washington  HARRY  REID,  Nevada 

PETE  V.  DOMENICI,  New  Mexico  PAUL  SIMON,  Illinois 

NANCY  LANDON  KASSEBAUM,  Kansas  DANIEL  K.  AKAKA,  Hawaii 

DON  NICKLES,  Oklahoma  PAUL  WELLSTONE,  Minnesota 

BEN  NIGHTHORSE  CAMPBELL,  Colorado        BYRON  L.  DORGAN,  North  Dakota 
CRAIG  THOMAS,  Wyoming 
ORRIN  G.  HATCH,  Utah 

STEVEN  J.W.  HEELEY  Majority  Staff  Director  /Chief  Counsel 
PATRICIA  M.  Zell,  Minority  Staff  Director  /Chief  Counsel 

(ID 


CONTENTS 


Page 

Public  Law  101-601,  text  of 4 

Statements: 

Antone,  Cecil  F.,  Lieutenant  Governor,  Gila  River  Indian  Community, 

Sacaton,  AZ  34 

Blackowl,  Elizabeth,  chairwoman,  Pawnee  Tribe  of  Oklahoma,  Pawnee 

OK  ;  37 

Campbell,  Hon.  Ben  Nighthorse,  U.S.  Senator  from  Colorado  23 

Dorgan,  Hon.  Byron  L.,  U.S.  Senator  from  North  Dakota  20 

Inouye,  Hon.  Daniel  K.,  U.S.  Senator  from  Hawaii,  vice  chairman,  Com- 
mittee on  Indian  Affairs  1 

McManamon,  Francis,  Departmental  Consulting  Archaeologist  16 

Mentz,  Tim,  NAGPRA  Representative,  Standing  Rock  Sioux  Tribe  40 

Monroe,   Dan,   NAGPRA  Review   Committee,   Peabody  Essex  Museum, 

Salem,  MA  27 

Movnihan,  William,  chairman,  American  Association  of  Museums;  presi- 
dent and  chief  executive  officer,  Milwaukee  Public  Museum,  Milwau- 
kee, WI  45 

Naranjo,  Tessie,  chairperson,  NAGPRA  Review  Committee,  Santa  Clara 

Pueblo,  Espanola,  NM  22 

Peregoy,  Esquire,  Robert,  attorney-at-law,  Native  American  Rights  Fund, 

Washington,  DC  37 

Stevenson,  Katherine  H.,  associate  director,  Cultural  Resource  Steward- 
ship and  Partnerships,  National  Park  Service,  Department  of  the  Inte- 
rior, Washington,  DC  16 

Taken  Alive,  Jesse,  chairman,  Standing  Rock  Sioux  Tribe,  Fort  Yates, 

North  Dakota  40 

Appendix 

Prepared  statements: 

Allen,  W.  Ron,  president,  National  Congress  of  American  Indians  (with 

attachments) 51 

American  Indian  Ritual  Object  Repatriation  Foundation  58 

Antone,  Cecil  F 67 

Bielawski,  Ph.D.,  Ellen,  executive  director,  NAGPRA  project  director, 

and  director,  KTA  (with  attachments)  70 

Blackowl,  Elizabeth  78 

Bourland,  Greg,  secretary,  Dakota  Territory,  Chairmans  Council 104 

Campbell,  Hon.  Ben  Nighthorse,  U.S.  Senator  from  Colorado  49 

Champagne,  Duane,  director,  American  Indian  Studies  Center,  UCLA  99 

Dorgan,  Hon.  Byron  L.,  U.S.  Senator  from  North  Dakota  50 

Drapeau,  Darrell,  chairman,  Dakota  Territory  Chairmans  Council  104 

Hale,  Albert,  president,  Navajo  Nation  108 

Holt,  David  C.,  Nez  Perce  (with  attachments) 114 

Monroe,  Dan  (with  attachment) 121 

Moynihan,  William  (with  attachments) 131 

Naranjo,  Tessie  (with  attachment) 147 

Nihipali,  Kunani,  Po'o  \"  155 

Peregoy,  Esquire,  Robert  (with  attachments)  166 

Stevenson,  Katherine  H.  (with  attachments)  177 

Taken  Alive,  Jesse  (with  attachments*)  198 


(III) 


IV 

Page 

Additional  material  submitted  for  the  record: 
Letters: 

Bourland,  Greg,  chairman,  Cheyenne  River  Sioux  Tribe  234 

Drapeau,   Darrell  E.,  chairman,   Business  Claims  Committee,  Yankton 

Sioux  Tribe  240 

Fois,  Andrew,  Assistant  Attorney  General,  Department  of  Justice  241 

Heyman,   I.   Michael,   secretary,  Smithsonian   Institution  (with   attach- 
ments)        244 

Kibby,  Larry,  program  director,  Western  Shoshone  Historic  Preservation 

Society  (with  attachments) 286 

•NOTE — other  material  submitted  for  the  record  retained  in  commit- 
tee files. 


IMPLEMENTATION  OF  THE  NATIVE  AMER- 
ICAN GRAVES  PROTECTION  AND  REPATRI- 
ATION ACT,  [PUBLIC  LAW  101-601] 


WEDNESDAY,  DECEMBER  6,  1995 

U.S.  Senate, 
Committee  on  Indian  Affairs, 

Washington,  DC. 
The  committee  met,  pursuant  to  notice,  at  10  a.m.  in  room  485, 
Russell  Senate  Office  Building,  Hon.  Daniel  K.  Inouye  (vice  chair- 
man of  the  subcommittee)  presiding. 
Present:  Senators  Inouye,  Dorgan,  and  Campbell. 

STATEMENT  OF  HON.  DAMEL  K.  INOUYE,  U.S.  SENATOR  FROM 
HAWAII,  VICE  CHAIRMAN,  COMMITTEE  ON  INDIAN  AFFAIRS 

Senator  Inouye.  Good  morning.  I  am  pleased  to  welcome  all  of 
you  to  this  hearing  this  morning  on  the  implementation  of  the  Na- 
tive American  Graves  Protection  and  Repatriation  Act. 

The  chairman  of  the  committee,  Mr.  McCain,  had  planned  to  be 
here  to  chair  this  meeting,  but  was  advised  late  yesterday  that  he 
would  be  needed  to  address  matters  of  national  security  in  Bosnia 
at  another  committee. 

Enacted  into  law  at  the  end  of  the  101st  session  of  the  Congress, 
this  act  provides  the  authority  and  mechanism  for  the  repatriation 
of  Native  American  human  remains,  funerary  objects,  sacred  ob- 
jects, and  objects  of  cultural  patrimony.  Final  regulations  of  the  im- 
plementation of  the  act  were  published  in  the  "Federal  Register"  on 
Monday  of  this  week. 

Since  its  enactment,  more  than  2,700  Native  American  human 
remains,  nearly  123,000  associated  funerary  objects,  16  objects  of 
cultural  patrimony,  and  212  sacred  objects  have  been  repatriated. 

In  the  101st  session  of  the  Congress,  the  committee  held  an  over- 
sight hearing  on  the  initial  activities  associated  with  the  implemen- 
tation of  the  act,  and  this  morning  the  committee  meets  to  receive 
an  update  on  the  implementation  of  the  act. 

In  one  of  the  first  legal  actions  to  be  brought  under  the  act,  a 
Native  Hawaiian  organization,  Hui  Malama  I  Na  Kupuna  O  Ha- 
wai'i  Nei,  sued  the  Secretary  of  the  Navy  and  the  Bernice  Pauahi 
Hawaii  Bishop  Museum,  asserting  that,  first,  the  Secretary  had 
violated  the  act  by  failing  to  expeditiously  return  Native  Hawaiian 
human  remains  that  had  been  disinterred  from  the  Mokapu  Penin- 
sula and,  second,  in  conducting  additional  scientific  research  on  the 
remains,  the  Secretary  further  violated  the  act. 

(1) 


This  litigation  has  raised  several  interesting  questions,  some  of 
which  I  believe  we  did  not  anticipate  at  the  time  the  Congress  was 
considering  the  act. 

Following  their  testimony,  I  wouldd  like  to  call  upon  the  wit- 
nesses to  share  with  us  any  views  they  may  have  on  some  of  the 
issues  raised  by  this  litigation. 

One  of  the  issues  of  first  impression  is  whether  Native  American 
human  remains  have  standing  under  the  law  in  their  own  right  to 
assert  an  injury  based  upon  the  violation  or  desecration  of  those  re- 
mains. 

In  this  action,  Hui  Malama  asserted  that,  according  to  Hawaiian 
custom,  human  remains  are  spiritual  beings  which  possess  all  of 
the  traits  of  a  living  person. 

The  Federal  district  court  in  Hawaii  concluded  that  there  was  no 
such  standing  under  the  act  because  the  act  classifies  human  re- 
mains as  cultural  items  and  fails  to  list  human  remains  as  legally- 
recognized  persons  or  as  an  entity  with  legally-protected  interests 
under  the  statute. 

The  court  went  on  to  find  that  there  would  be  no  standing  under 
common  law,  either,  because  the  human  remains  could  not  dem- 
onstrate that  they  had  suffered  an  injury,  in  fact,  even  though  the 
court  notes  other  non-human  entities  such  as  animals  and  natural 
habitats  and  other  inanimate  objects  such  as  ships  and  corpora- 
tions have  been  accorded  standing. 

The  court  concludes  that  Hui  Malama  has  not  shown  that  a  com- 
parable identifiable  benefit  to  living  members  of  society  would  re- 
sult from  affording  standing  for  human  remains. 

The  court  also  discussed  the  notion  of  an  action  being  brought  by 
a  person  or  entity  in  a  guardianship  capacity  for  human  remains, 
but  finds  no  authority  for  guardian -initiated  action  in  this  act. 

This  finding  poses  the  interesting  legal  question  of  who  may  as- 
sert the  right  to  protection  on  behalf  of  human  remains  if  there  is 
no  readily-identifiable  descendent  or  relative. 

The  second  concern  that  Hui  Malama  sought  to  have  the  court 
address  was  whether  information  derived  from  additional  scientific 
research  conducted  on  the  remains  could  be  protected  from  public 
disclosure  by  one  of  the  exceptions  to  the  Freedom  of  Information 
Act. 

The  court  finds  that  the  inventory  of  the  Mokapu  remains  is  sub- 
ject to  the  Freedom  of  Information  Act  and  finds  that  the  Native 
American  Graves  Protection  and  Repatriation  Act  is  not  a  "with- 
holding statute"  for  purposes  of  the  Freedom  of  Information  Act  be- 
cause the  act  does  not  indicate  that  any  inventory  results  are  to 
be  confidential  or  privileged  in  any  respect. 

In  addition,  the  court  finds  that  the  Freedom  of  Information  Act 
exemption  that  protects  individuals  from  invasions  of  privacy — an 
exception  that  aims  to  protect  individuals  from  public  scrutiny  re- 
garding personal  affairs — does  not  apply  because  it  is  intended  to 
protect  information  regarding  particular  living  persons. 

Finally,  the  court  concludes  that  the  exercise  of  this  power  of  eq- 
uity to  protect  information  about  remains  would  be  inappropriate 
on  the  basis  of  its  findings  that  there  are  no  extreme  or  exceptional 
circumstances  and  that  the  plain  language  of  the  statute  does  not 
exempt  inventory  information  from  public  disclosure. 


Further,  the  court  finds  that  the  Native  American  Graves  Protec- 
tion and  Repatriation  Act  does  not  prevent  museums  or  Federal 
agencies  from  conducting  additional  scientific  studies  or  research 
on  human  remains  except  after  completion  of  the  initial  inventory. 

I've  taken  time  to  raise  these  matters  because  they  impress  me 
as  important  considerations  that  Native  people  may  want  to  have 
the  Congress  address,  particularly  given  the  fact  tnat  this  ruling 
will  not  be  appealed.  So,  as  of  this  moment,  it  is  the  law  of  the 
land. 

Again,  I  want  to  urge  any  of  the  witnesses  who  may  wish  to  do 
so  to  address  these  issues  as  they  present  testimony  to  the  commit- 
tee today,  and  we  will  keep  the  record  open,  if  such  is  necessary, 
so  that  witnesses  and  other  interested  parties  may  submit  addi- 
tional testimony. 

[Text  of  Public  Law  101-601  follows:] 


PUBLIC  LAW  101-601— NOV.  16,  1990 


NATIVE  AMERICAN  GRAVES 

PROTECTION  AND  REPATRIATION 

ACT 


104  STAT.  3048 


PUBLIC  LAW  101-601— NOV.  16,  1990 


Public  Law  101-601 
101st  Congress 


An  Act 


Nov.  16.  1990 
[H.R*5237] 


Native 

American 

Graves 

Protection 

and 

Repatriation 

Act. 

Hawaiian 

Natives. 

Historic 

preservation. 

25  USC  3001 

note. 

25  USC  3001. 


To  provide  for  the  protection  of  Native  American  graves,  and  for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled, 

SECTION  1.  SHORT  TITLE. 

This  Act  may  be  cited  as  the  "Native  American  Graves  Protection 
and  Repatriation  Act". 

SEC.  2.  DEFINITIONS. 

For  purposes  of  this  Act,  the  term— 

(1)  "burial  site"  means  any  natural  or  prepared  physical 
location,  whether  originally  below,  on,  or  above  the  surface  of 
the  earth,  into  which  as  a  part  of  the  death  rite  or  ceremony  of  a 
culture,  individual  human  remains  are  deposited. 

(2)  "cultural  affiliation"  means  that  there  is  a  relationship  of 
shared  group  identity  which  can  be  reasonably  traced  histori- 
cally or  prehistorically  between  a  present  day  Indian  tribe  or 
Native  Hawaiian  organization  and  an  identifiable  earlier  group. 

(3)  "cultural  items"  means  human  remains  and — 

(A)  "associated  funerary  objects"  which  shall  mean  ob- 
jects that,  as  a  part  of  the  death  rite  or  ceremony  of  a 
culture,  are  reasonably  believed  to  have  been  placed  with 
individual  human  remains  either  at  the  time  of  death  or 
later,  and  both  the  human  remains  and  associated  funerary 
objects  are  presently  in  the  possession  or  control  of  a  Fed- 
eral agency  or  museum,  except  that  other  items  exclusively 
made  for  burial  purposes  or  to  contain  human  remains 
shall  be  considered  as  associated  funerary  objects. 

(B)  "unassociated  funerary  objects"  which  shall  mean 
objects  that,  as  a  part  of  the  death  rite  or  ceremony  of  a 
culture,  are  reasonably  believed  to  have  been  placed  with 
individual  human  remains  either  at  the  time  of  death  or 
later,  where  the  remains  are  not  in  the  possession  or  con- 
trol of  the  Federal  agency  or  museum  and  the  objects  can 
be  identified  by  a  preponderance  of  the  evidence  as  related 
to  specific  individuals  or  families  or  to  known  human  re- 
mains or,  by  a  preponderance  of  the  evidence,  as  having 
been  removed  from  a  specific  burial  site  of  an  individual 
culturally  affiliated  with  a  particular  Indian  tribe, 

(C)  "sacred  objects"  which  shall  mean  specific  ceremonial 
objects  which  are  needed  by  traditional  Native  American 
religious  leaders  for  the  practice  of  traditional  Native 
American   religions  by  their  present  day  adherents,  and 

(D)  "cultural  patrimony"  which  shall  mean  an  object 
having  ongoing  historical,  traditional,  or  cultural  impor- 
tance central  to  the  Native  American  group  or  culture 
itself,  rather  than  property  owned  by  an  individual  Native 


c 

PUBLIC  LAW  101-601— NOV.  16,  1990  104  STAT.  3049 

American,  and  which,  therefore,  cannot  be  alienated, 
appropriated,  or  conveyed  by  any  individual  regardless  of 
whether  or  not  the  individual  is  a  member  of  the  Indian 
tribe  or  Native  Hawaiian  organization  and  such  object  shall 
have  been  considered  inalienable  by  such  Native  American 
group  at  the  time  the  object  was  separated  from  such  group. 

(4)  "Federal  agency"  means  any  department,  agency,  or 
instrumentality  of  the  United  States.  Such  term  does  not 
include  the  Smithsonian  Institution. 

(5)  "Federal  lands"  means  any  land  other  than  tribal  lands 
which  are  controlled  or  owned  by  the  United  States,  including 
lands  selected  by  but  not  yet  conveyed  to  Alaska  Native  Cor- 
porations and  groups  organized  pursuant  to  the  Alaska  Native 
Claims  Settlement  Act  of  1971. 

(6)  "Hui  Malama  I  Na  Kupuna  O  Hawai'i  Nei"  means  the 
nonprofit,  Native  Hawaiian  organization  incorporated  under 
the  laws  of  the  State  of  Hawaii  by  that  name  on  April  17,  1989, 
for  the  purpose  of  providing  guidance  and  expertise  in  decisions 
dealing  with  Native  Hawaiian  cultural  issues,  particularly 
burial  issues. 

(7)  "Indian  tribe"  means  .any  tribe,  band,  nation,  or  other 
organized  group  or  community  of  Indians,  including  any  Alaska 
Native  village  (as  defined  in,  or  established  pursuant  to,  the 
Alaska  Native  Claims  Settlement  Act),  which  is  recognized  as 
eligible  for  the  special  programs  and  services  provided  by  the 
United  States  to  Indians  because  of  their  status  as  Indians. 

(8)  "museum"  means  any  institution  or  State  or  local  govern- 
ment agency  (including  any  institution  of  higher  learning)  that 
receives  Federal  funds  and  has  possession  of,  or  control  over, 
Native  American  cultural  items.  Such  term  does  not  include  the 
Smithsonian  Institution  or  any  other  Federal  agency. 

(9)  "Native  American"  means  of,  or  relating  to,  a  tribe, 
people,  or  culture  that  is  indigenous  to  the  United  States. 

(10)  "Native  Hawaiian"  means  any  individual  who  is  a 
descendant  of  the  aboriginal  people  who,  prior  to  1778,  occupied 
and  exercised  sovereignty  in  the  area  that  now  constitutes  the 
State  of  Hawaii. 

(11)  "Native  Hawaiian  organization"  means  any  organization 
which — 

(A)  serves  and  represents  the  interests  of  Native  Hawai- 
ians, 

(B)  has  as  a  primary  and  stated  purpose  the  provision  of 
services  to  Native  Hawaiians,  and 

(C)  has  expertise  in  Native  Hawaiian  Affairs,  and 

shall  include  the  Office  of  Hawaiian  Affairs  and  Hui  Malama  I 
Na  Kupuna  O  Hawai'i  Nei. 

(12)  "Office  of  Hawaiian  Affairs"  means  the  Office  of  Ha- 
waiian Affairs  established  by  the  constitution  of  the  State  of 
Hawaii. 

(13)  "right  of  possession"  means  possession  obtained  with  the 
voluntary  consent  of  an  individual  or  group  that  had  authority 
of  alienation.  The  original  acquisition  of  a  Native  American 
unassociated  funerary  object,  sacred  object  or  object  of  cultural 
patrimony  from  an  Indian  tribe  or  Native  Hawaiian  organiza- 
tion with  the  voluntary  consent  of  an  individual  or  group  with 
authority  to  alienate  such  object  is  deemed  to  give  right  of 
possession  of  that  object,  unless  the  phrase  so  defined  would,  as 


104  STAT.  3050 


PUBLIC  LAW  101-601— NOV.  16,  1990 


applied  in  section  7(c),  result  in  a  Fifth  Amendment  taking  by 
the  United  States  as  determined  by  the  United  States  Claims 
Court  pursuant  to  28  U.S.C.  1491  in  which  event  the  "right  of 
possession"  shall  be  as  provided  under  otherwise  applicable 
property  law.  The  original  acquisition  of  Native  American 
human  remains  and  associated  funerary  objects  which  were 
excavated,  exhumed,  or  otherwise  obtained  with  full  knowledge 
and  consent  of  the  next  of  kin  or  the  official  governing  body  of 
the  appropriate  culturally  affiliated  Indian  tribe  or  Native 
Hawaiian  organization  is  deemed  to  give  right  of  possession  to 
those  remains. 

(14)  "Secretary"  means  the  Secretary  of  the  Interior. 

(15)  "tribal  land"  means — 

(A)  all  lands  within  the  exterior  boundaries  of  any  Indian 
reservation; 

(B)  all  dependent  Indian  communities; 

(C)  any  lands  administered  for  the  benefit  of  Native 
Hawaiians  pursuant  to  the  Hawaiian  Homes  Commission 
Act,  1920,  and  section  4  of  Public  Law  86-3. 

25  USC  3002.  SEC.  3.  OWNERSHIP. 

(a)  Native  American  Human  Remains  and  Objects.— The  owner- 
ship or  control  of  Native  American  cultural  items  which  are  exca- 
vated or  discovered  on  Federal  or  tribal  lands  after  the  date  of 
enactment  of  this  Act  shall  be  (with  priority  gi\en  in  the  order 
listed) — 

(1)  in  the  case  of  Native  American  human  remains  and 
associated  funerary  objects,  in  the  lineal  descendants  of  the 
Native  American;  or 

(2)  in  any  case  in  which  such  lineal  descendants  cannot  be 
ascertained,  and  in  the  case  of  unassociated  funerary  objects, 
sacred  objects,  and  objects  of  cultural  patrimony— 

(A)  in  the  Indian  tribe  or  Native  Hawaiian  organization 
on    whose    tribal    land    such    objects    or    remains    were 
discovered; 
Claims.  (B)  in  the  Indian  tribe  or  Native  Hawaiian  organization 

which  has  the  closest  cultural  affiliation  with  such  remains 
or  objects  and  which,  upon  notice,  states  a  claim  for  such 
remains  or  objects;  or 

(C)  if  the  cultural  affiliation  of  the  objects  cannot  be 
reasonably  ascertained  and  if  the  objects  were  discovered 
on  Federal  land  that  is  recognized  by  a  final  judgment  of 
the  Indian  Claims  Commission  or  the  United  States  Court 
of  Claims  as  the  aboriginal  land  of  some  Indian  tribe- 
CD  in  the  Indian  tribe  that  is  recognized  as  aborigi- 
nally occupying  the  area  in  which  the  objects  were 
discovered,  if  upon  notice,  such  tribe  states  a  claim  for 
such  remains  or  objects,  or 

(2)  if  it  can  be  shown  by  a  preponderance  of  the 
evidence  that  a  different  tribe  has  a  stronger  cultural 
relationship  with  the  remains  or  objects  than  the  tribe 
or  organization  specified  in  paragraph  (1),  in  the  Indian 
tribe  that  has  the  strongest  demonstrated  relationship, 
if  upon  notice,  such  tribe  states  a  claim  for  such  re- 
mains or  objects. 

(b)  Unclaimed   Native   American   Human   Remains   and  Ob- 
Regulations.           JECTS—  Native  American  cultural  items  not  claimed  under  subsec- 


PUBLIC  LAW  101-601— NOV.  16,  1990  104  STAT.  3051 

tion  (a)  shall  be  disposed  of  in  accordance  with  regulations 
promulgated  by  the  Secretary  in  consultation  with  the  review 
committee  established  under  section  8,  Native  American  groups, 
representatives  of  museums  and  the  scientific  community. 

(c)  Intentional  Excavation  and  Removal  of  Native  American 
Human  Remains  and  Objects. — The  intentional  removal  from  or 
excavation  of  Native  American  cultural  items  from  Federal  or  tribal 
lands  for  purposes  of  discovery  study,  or  removal  of  such  items  is 
permitted  only  if — 

(1)  such  items  are  excavated  or  removed  pursuant  to  a  permit 
issued  under  section  4  of  the  Archaeological  Resources  Protec- 
tion Act  of  1979  (93  Stat.  721;  16  U.S.C.  470aa  et  seq.)  which 
shall  be  consistent  with  this  Act; 

(2)  such  items  are  excavated  or  removed  after  consultation 
with  or,  in  the  case  of  tribal  lands,  consent  of  the  appropriate  (if 
any)  Indian  tribe  or  Native  Hawaiian  organization; 

(3)  the  ownership  and  right  of  control  of  the  disposition  of 
such  items  shall  be  as  provided  in  subsections  (a)  and  (b);  and 

(4)  proof  of  consultation  or  consent  under  paragraph  (2)  is 
shown. 

(d)  Inadvertent  Discovery  of  Native  American  Remains  and 
Objects.— (1)  Any  person  who  knows,  or  has  reason  to  know,  that 
such  person  has  discovered  Native  American  cultural  items  on 
Federal  or  tribal  lands  after  the  date  of  enactment  of  this  Act  shall 
notify,  in  writing,  the  Secretary  of  the  Department,  or  head  of  any 
other  agency  or  instrumentality  of  the  United  States,  having  pri- 
mary management  authority  with  respect  to  Federal  lands  and  the 
appropriate  Indian  tribe  or  Native  Hawaiian  organization  with 
respect  to  tribal  lands,  if  known  or  readily  ascertainable,  and,  in  the 
case  of  lands  that  have  been  selected  by  an  Alaska  Native  Corpora- 
tion or  group  organized  pursuant  to  the  Alaska  Native  Claims 
Settlement  Act  of  1971,  the  appropriate  corporation  or  group.  If  the 
discovery  occurred  in  connection  with  an  activity,  including  (but  not 
limited  to)  construction,  mining,  logging,  and  agriculture,  the  person 
shall  cease  the  activity  in  the  area  of  the  discovery,  make  a  reason- 
able effort  to  protect  the  items  discovered  before  resuming  such 
activity,  and  provide  notice  under  this  subsection.  Following  the 
notification  under  this  subsection,  and  upon  certification  by  the 
Secretary  of  the  department  or  the  head  of  any  agency  or 
instrumentality  of  the  United  States  or  the  appropriate  Indian  tribe 
or  Native  Hawaiian  organization  that  notification  has  been  re- 
ceived, the  activity  may  resume  after  30  days  of  such  certification. 

(2)  The  disposition  of  and  control  over  any  cultural  items  exca- 
vated or  removed  under  this  subsection  shall  be  determined  as 
provided  for  in  this  section. 

(3)  If  the  Secretary  of  the  Interior  consents,  the  responsibilities  (in 
whole  or  in  part)  under  paragraphs  (1)  and  (2)  of  the  Secretary  of 
any  department  (other  than  the  Department  of  the  Interior)  or  the 
head  of  any  other  agency  or  instrumentality  may  be  delegated  to  the 
Secretary  with  respect  to  any  land  managed  by  such  other  Secretary 
or  agency  head. 

(e)  Relinquishment. — Nothing  in  this  section  shall  prevent  the 
governing  body  of  an  Indian  tribe  or  Native  Hawaiian  organization 
from  expressly  relinquishing  control  over  any  Native  American 
human  remains,  or  title  to  or  control  over  any  funerary  object,  or 
sacred  object. 


104  STAT.  3052  PUBLIC  LAW  101-601— NOV.  16,  1990 

SEC.  4.  ILLEGAL  TRAFFICKING. 

(a)  Illegal  Trafficking. — Chapter  53  of  title  18,  United  States 
Code,  is  amended  by  adding  at  the  end  thereof  the  following  new 
section: 

"§1170.  Illegal  Trafficking  in  Native  American  Human  Remains 
and  Cultural  Items 

"(a)  Whoever  knowingly  sells,  purchases,  uses  for  profit,  or  trans- 
ports for  sale  or  profit,  the  human  remains  of  a  Native  American 
without  the  right  of  possession  to  those  remains  as  provided  in  the 
Native  American  Graves  Protection  and  Repatriation  Act  shall  be 
fined  in  accordance  with  this  title,  or  imprisoned  not  more  than  12 
months,  or  both,  and  in  the  case  of  a  second  or  subsequent  violation, 
be  fined  in  accordance  with  this  title,  or  imprisoned  not  more  than  5 
years,  or  both. 

"(b)  Whoever  knowingly  sells,  purchases,  uses  for  profit,  or  trans- 
ports for  sale  or  profit  any  Native  American  cultural  items  obtained 
in  violation  of  the  Native  American  Grave  Protection  and  Repatri- 
ation Act  shall  be  fined  in  accordance  with  this  title,  imprisoned  not 
more  than  one  year,  or  both,  and  in  the  case  of  a  second  or 
subsequent  violation,  be  fined  in  accordance  with  this  title,  impris- 
oned not  more  than  5  years,  or  both.". 

(b)  Table  of  Contents.— The  table  of  contents  for  chapter  53  of 
title  18,  United  States  Code,  is  amended  by  adding  at  the  end  thereof 
the  following  new  item: 

"1170.  Illegal    Trafficking    in    Native    American    Human    Remains    and    Cultural 
Items.". 

Museums.  SEC.  5.  INVENTORY  FOR  HUMAN  REMAINS  AND  ASSOCIATED  FUNERARY 

25  USC  3003.  OBJECTS. 

(a)  In  General. — Each  Federal  agency  and  each  museum  which 
has  possession  or  control  over  holdings  or  collections  of  Native 
American  human  remains  and  associated  funerary  objects  shail 
compile  an  inventory  of  such  items  and,  to  the  extent  possible  based 
on  information  possessed  by  such  museum  or  Federal  agency,  iden- 
tify the  geographical  and  cultural  affiliation  of  such  item. 

(b)  Requirements. — (1)  The  inventories  and  identifications  re- 
quired under  subsection  (a)  shall  be — 

(A)  completed  in  consultation  with  tribal  government  and 
Native  Hawaiian  organization  officials  and  traditional  religious 
leaders; 

(B)  completed  by  not  later  than  the  date  that  is  5  years  after 
the  date  of  enactment  of  this  Act,  and 

(C)  made  available  both  during  the  time  they  are  being  con- 
ducted and  afterward  to  a  review  committee  established  under 
section  8. 

(2)  Upon  request  by  an  Indian  tribe  or  Native  Hawaiian  organiza- 
tion which  receives  or  should  have  received  notice,  a  museum  or 
Federal  agency  shall  supply  additional  available  documentation  to 
supplement  the  information  required  by  subsection  (a)  of  this  sec- 
tion. The  term  "documentation"  means  a  summary  of  existing 
museum  or  Federal  agency  records,  including  inventories  or  cata- 
logues, relevant  studies,  or  other  pertinent  data  for  the  limited 
purpose  of  determining  the  geographical  origin,  cultural  affiliation, 
and  basic  facts  surrounding  acquisition  and  accession  of  Native 
American  human  remains  and  associated  funerary  objects  subject  to 
this  section.  Such  term  does  not  mean,  and  this  Act  shall  not  be 


10 


PUBLIC  LAW  101-601— NOV.  16,  1990 


104  STAT.  3053 


construed  to  be  an  authorization  for,  the  initiation  of  new  scientific 
studies  of  such  remains  and  associated  funerary  objects  or  other 
means  of  acquiring  or  preserving  additional  scientific  information 
from  such  remains  and  objects. 

(c)  Extension  of  Time  for  Inventory. — Any  museum  which  has 
made  a  good  faith  effort  to  carry  out  an  inventory  and  identification 
under  this  section,  but  which  has  been  unable  to  complete  the 
process,  may  appeal  to  the  Secretary  for  an  extension  of  the  time 
requirements  set  forth  in  subsection  (bXD(B).  The  Secretary  may 
extend  such  time  requirements  for  any  such  museum  upon  a  finding 
of  good  faith  effort.  An  indication  of  good  faith  shall  include  the 
development  of  a  plan  to  carry  out  the  inventory  and  identification 
process. 

(d)  Notification. — (1)  If  the  cultural  affiliation  of  any  particular 
Native  American  human  remains  or  associated  funerary  objects  is 
determined  pursuant  to  this  section,  the  Federal  agency  or  museum 
concerned  shall,  not  later  than  6  months  after  the  completion  of  the 
inventory,  notify  the  affected  Indian  tribes  or  Native  Hawaiian 
organizations. 

(2)  The  notice  required  by  paragraph  (1)  shall  include  infor- 
mation— 

(A)  which  identifies  each  Native  American  human  remains  or 
associated  funerary  objects  and  the  circumstances  surrounding 
its  acquisition; 

(B)  which  lists  the  human  remains  or  associated  funerary 
objects  that  are  clearly  identifiable  as  to  tribal  origin;  and 

(C)  which  lists  the  Native  American  human  remains  and 
associated  funerary  objects  that  are  not  clearly  identifiable  as 
being  culturally  affiliated  with  that  Indian  tribe  or  Native 
Hawaiian  organization,  but  which,  given  the  totality  of  cir- 
cumstances surrounding  acquisition  of  the  remains  or  objects, 
are  determined  by  a  reasonable  belief  to  be  remains  or  objects 
culturally  affiliated  with  the  Indian  tribe  or  Native  Hawaiian 
organization. 

(3)  A  copy  of  each  notice  provided  under  paragraph  (1)  shall  be 
sent  to  the  Secretary  who  shall  publish  each  notice  in  the  Federal 
Register. 

(e)  Inventory. — For  the  purposes  of  this  section,  the  term  "inven- 
tory" means  a  simple  itemized  list  that  summarizes  the  information 
called  for  by  this  section. 

SEC.  6.  SUMMARY  FOR  UNASSOCIATED  FUNERARY  OBJECTS.  SACRED  OB- 
JECTS. AND  CULTURAL  PATRIMONY. 

(a)  In  General. — Each  Federal  agency  or  museum  which  has    Museums. 
possession  or  control  over  holdings  or  collections  of  Native  Amer- 
ican  unassociated  funerary  objects,  sacred  objects,  or  objects  of 
cultural  patrimony  shall  provide  a  written  summary  of  such  objects 

based  upon  available  information  held  by  such  agency  or  museum. 
The  summary  shall  describe  the  scope  of  the  collection,  kinds  of 
objects  included,  reference  to  geographical  location,  means  and 
period  of  acquisition  and  cultural  affiliation,  where  readily  as- 
certainable. 

(b)  Requirements. — (1)  The  summary  required  under  subsection 
(a)  shall  be — 

(A)  in  lieu  of  an  object-by-object  inventory; 

(B)  followed  by  consultation  with  tribal  government  and 
Native  Hawaiian  organization  officials  and  traditional  religious 
leaders;  and 


Federal 

Register, 

publication. 


25  USC  3004. 


11 


104  STAT.  3054  PUBLIC  LAW  101-601— NOV.  16,  1990 

(C)  completed  by  not  later  than  the  date'that  is  3  years  after 
the  date  of  enactment  of  this  Act. 
(2)  Upon  request,  Indian  Tribes  and  Native  Hawaiian  organiza- 
tions shall  have  access  to  records,  catalogues,  relevant  studies  or 
other  pertinent  data  for  the  limited  purposes  of 'determining  the 
geographic  origin,  cultural  affiliation,  and  basic  facts  surrounding 
acquisition  and  accession  of  Native  American  objects  subject  to  this 
section.  Such  information  shall  be  provided  in  a  reasonable  manner 
to  be  agreed  upon  by  all  parties. 

25  USC  3005.  SEC.  7.  REPATRIATION. 

(a)  Repatriation  of  Native  American  Human  Remains  and 
Objects  Possessed  or  Controlled  by  Federal  Agencies  and  Muse- 
ums.— (1)  If,  pursuant  to  section  5,  the  cultural  affiliation  of  Native 
American  human  remains  and  associated  funerary  objects  with  a 
particular  Indian  tribe  or  Native  Hawaiian  organization  is  estab- 
lished, then  the  Federal  agency  or  museum,  upon  the  request  of  a 
known  lineal  descendant  of  the  Native  American  or  of  the  tribe  or 
organization  and  pursuant  to  subsections  (b)  and  (e)  of  this  section, 
shall  expeditiously  return  such  remains  and  associated  funerary 
objects. 

(2)  If,  pursuant  to  section  6,  the  cultural  affiliation  with  a  particu- 
lar Indian  tribe  or  Native  Hawaiian  organization  is  shown  with 
respect  to  unassociated  funerary  objects,  sacred  objects  or  objects  of 
cultural  patrimony,  then  the  Federal  agency  or  museum,  upon  the 
request  of  the  Indian  tribe  or  Native  Hawaiian  organization  and 
pursuant  to  subsections  (b),  (c)  and  (e)  of  this  section,  shall  expedi- 
tiously return  such  objects. 

(3)  The  return  of  cultural  items  covered  by  this  Act  shall  be  in 
consultation  with  the  requesting  lineal  descendant  or  tribe  or 
organization  to  determine  the  place  and  manner  of  delivery  of  such 
items. 

(4)  Where  cultural  affiliation  of  Native  American  human  remains 
and  funerary  objects  has  not  been  established  in  an  inventory 
prepared  pursuant  to  section  5,  or  the  summary  pursuant  to  section 
6,  or  where  Native  American  human  remains  and  funerary  objects 
are  not  included  upon  any  such  inventory,  then,  upon  request  and 
pursuant  to  subsections  (b)  and  (e)  and,  in  the  case  of  unassociated 
funerary  objects,  subsection  (c),  such  Native  American  human  re- 
mains and  funerary  objects  shall  be  expeditiously  returned  where 
the  requesting  Indian  tribe  or  Native  Hawaiian  organization  can 
show  cultural  affiliation  by  a  preponderance  of  the  evidence  based 
upon  geographical,  kinship,  biological,  archaeological,  anthropo- 
logical, linguistic,  folkloric,  oral  traditional,  historical,  or  other 
relevant  information  or  expert  opinion. 

(5)  Upon  request  and  pursuant  to  subsections  (b),  (c)  and  (e),  sacred 
objects  and  objects  of  cultural  patrimony  shall  be  expeditiously 
returned  where — 

(A)  the  requesting  party  is  the  direct  lineal  descendant  of  an 
individual  who  owned  the  sacred  object; 

(B)  the  requesting  Indian  tribe  or  Native  Hawaiian  organiza- 
tion can  show  that  the  object  was  owned  or  controlled  by  the 
tribe  or  organization;  or 

(C)  the  requesting  Indian  tribe  or  Native  Hawaiian  organiza- 
tion can  show  that  the  sacred  object  was  owned  or  controlled  by 
a  member  thereof,  provided  that  in  the  case  where  a  sacred 
object  was  owned  by  a  member  thereof,  there  are  no  identifiable 


12 


PUBLIC  LAW  101-601— NOV.  16,  1990  104  STAT.  3055 

lineal  descendants  of  said  member  or  the  lineal  descendants, 
upon  notice,  have  failed  to  make  a  claim  for  the  object  under 
this  Act. 

(b)  Scientific  Study. — If  the  lineal  descendant,  Indian  tribe,  or 
Native  Hawaiian  organization  requests  the  return  of  culturally 
affiliated  Native  American  cultural  items,  the  Federal  agency  or 
museum  shall  expeditiously  return  such  items  unless  such  items  are 
indispensable  for  completion  of  a  specific  scientific  study,  the  out- 
come of  which  would  be  of  major  benefit  to  the  United  States.  Such 
items  shall  be  returned  by  no  later  than  90  days  after  the  date  on 
which  the  scientific  study  is  completed. 

(c)  Standard  of  Repatriation.— If  a  known  lineal  descendant  or 
an  Indian  tribe  or  Native  Hawaiian  organization  requests  the  return 
of  Native  American  unassociated  funerary  objects,  sacred  objects  or 
objects  of  cultural  patrimony  pursuant  to  this  Act  and  presents 
evidence  which,  if  standing  alone  before  the  introduction  of  evidence 
to  the  contrary,  would  support  a  finding  that  the  Federal  agency  or 
museum  did  not  have  the  right  of  possession,  then  such  agency  or 
museum  shall  return  such  objects  unless  it  can  overcome  such 
inference  and  prove  that  it  has  a  right  of  possession  to  the  objects. 

(d)  Sharing  of  Information  by  Federal  Agencies  and  Muse- 
ums.—Any  Federal  agency  or  museum  shall  share  what  information 
it  does  possess  regarding  the  object  in  question  with  the  known 
lineal  descendant,  Indian  tribe,  or  Native  Hawaiian  organization  to 
assist  in  making  a  claim  under  this  section. 

(e)  Competing  Claims.— Where  there  are  multiple  requests  for 
repatriation  of  any  cultural  item  and,  after  complying  with  the 
requirements  of  this  Act,  the  Federal  agency  or  museum  cannot 
clearly  determine  which  requesting  party  is  the  most  appropriate 
claimant,  the  agency  or  museum  may  retain  such  item  until  the 
requesting  parties  agree  upon  its  disposition  or  the  dispute  is 
otherwise  resolved  pursuant  to  the  provisions  of  this  Act  or  by  a 
court  of  competent  jurisdiction. 

(f)  Museum  Obligation. — Any  museum  which  repatriates  any 
item  in  good  faith  pursuant  to  this  Act  shall  not  be  liable  for  claims 
by  an  aggrieved  party  or  for  claims  of  breach  of  fiduciary  duty, 
public  trust,  or  violations  of  state  law  that  are  inconsistent  with  the 
provisions  of  this  Act. 

SEC.  8.  REVIEW  COMMITTEE.  25  USC  3006 

(a)  Establishment—  Within  120  days  after  the  date  of  enactment 
of  this  Act,  the  Secretary  shall  establish  a  committee  to  monitor  and 
review  the  implementation  of  the  inventory  and  identification  proc- 
ess and  repatriation  activities  required  under  sections  5,  6  and  7. 

to)  Membership.— <1)  The  Committee  established  under  subsection 
(a)  shall  be  composed  of  7  members, 

(A)  3  of  whom  shall  be  appointed  by  the  Secretary  from 
nominations  submitted  by  Indian  tribes,  Native  Hawaiian 
organizations,  and  traditional  Native  American  religious  lead- 
ers with  at  least  2  of  such  persons  being  traditional  Indian 
religious  leaders; 

(B)  3  of  whom  shall  be  appointed  by  the  Secretary  from 
nominations  submitted  by  national  museum  organizations  and 
scientific  organizations;  and 

(C)  1  who  shall  be  appointed  by  the  Secretary  from  a  list  of 
persons  developed  and  consented  to  by  all  of  the  members 
appointed  pursuant  to  subparagraphs  (A)  and  (B). 


13 


104  STAT.  3056  PUBLIC  LAW  101-601— NOV.  16,  1990 

(2)  The  Secretary  may  not  appoint  Federal  officers  or  employees  to 
the  committee. 

(3)  In  the  event  vacancies  shall  occur,  such  vacancies  shall  be 
filled  by  the  Secretary  in  the  same  manner  as  the  original  appoint- 
ment within  90  days  of  the  occurrence  of  such  vacancy. 

(4)  Members  of  the  committee  established  under  subsection  (a) 
shall  serve  without  pay,  but  shall  be  reimbursed  at  a  rate  equal  to 
the  daily  rate  for  GS-18  of  the  General  Schedule  for  each  day 
(including  travel  time)  for  which  the  member  is  actually  engaged  in 
committee  business.  Each  member  shall  receive  travel  expenses, 
including  per  diem  in  lieu  of  subsistence,  in  accordance  with  sec- 
tions 5702  and  5703  of  title  5,  United  States  Code. 

(c)  Responsibilities. — The  committee  established  under  subsection 
(a)  shall  be  responsible  for— 

(1)  designating  one  of  the  members  of  the  committee  as 
chairman; 

(2)  monitoring  the  inventory  and  identification  process  con- 
ducted under  sections  5  and  6  to  ensure  a  fair,  objective  consid- 
eration and  assessment  of  all  available  relevant  information 
and  evidence; 

(3)  upon  the  request  of  any  affected  party,  reviewing  and 
making  findings  related  to — 

(A)  the  identity  or  cultural  affiliation  of  cultural  items,  or 

(B)  the  return  of  such  items; 

(4)  facilitating  the  resolution  of  any  disputes  among  Indian 
tribes,  Native  Hawaiian  organizations,  or  lineal  descendants 
and  Federal  agencies  or  museums  relating  to  the  return  of  such 
items  including  convening  the  parties  to  the  dispute  if  deemed 
desirable; 

(5)  compiling  an  inventory  of  culturally  unidentifiable  human 
remains  that  are  in  the  possession  or  control  of  each  Federal 
agency  and  museum  and  recommending  specific  actions  for 
developing  a  process  for  disposition  of  such  remains; 

(6)  consulting  with  Indian  tribes  and  Native  Hawaiian 
organizations  and  museums  on  matters  within  the  scope  of  the 
work  of  the  committee  affecting  such  tribes  or  organizations; 

(7)  consulting  with  the  Secretary  in  the  development  of  regu- 
lations to  carry  out  this  Act; 

(8)  performing  such  other  related  functions  as  the  Secretary 
may  assign  to  the  committee;  and 

(9)  making  recommendations,  if  appropriate,  regarding  future 
care  of  cultural  items  which  are  to  be  repatriated. 

(d)  Any  records  and  findings  made  by  the  review  committee 
pursuant  to  this  Act  relating  to  the  identity  or  cultural  affiliation  of 
any  cultural  items  and  the  return  of  such  items  may  be  admissible 
in  any  action  brought  under  section  15  of  this  Act. 

(e)  Recommendations  and  Report.— The  committee  shall  make 
the  recommendations  under  paragraph  (c)(5)  in  consultation  with 
Indian  tribes  and  Native  Hawaiian  organizations  and  appropriate 
scientific  and  museum  groups. 

(f)  Access.— The  Secretary  shall  ensure  that  the  committee  estab- 
lished under  subsection  (a)  and  the  members  of  the  committee  have 
reasonable  access  to  Native  American  cultural  items  under  review 
and  to  associated  scientific  and  historical  documents. 

(g)  Duties  of  Secretary. — The  Secretary  shall — 

Regulations.  (1)  establish  such  rules  and  regulations  for  the  committee  as 

may  be  necessary,  and 


14 


PUBLIC  LAW  101-601— NOV.  16,  1990  104  STAT.  3057 

(2)  provide  reasonable  administrative  and  staff  support  nec- 
essary for  the  deliberations  of  the  committee. 

(h)  Annual  Report. — The  committee  established  under  subsec- 
tion (a)  shall  submit  an  annual  report  to  the  Congress  on  the 
progress  made,  and  any  barriers  encountered,  in  implementing  this 
section  during  the  previous  year. 

(i)  Termination. — The  committee  established  under  subsection  (a) 
shall  terminate  at  the  end  of  the  120-day  period  beginning  on  the 
day  the  Secretary  certifies,  in  a  report  submitted  to  Congress,  that 
the  work  of  the  committee  has  been  completed. 

SEC.  9.  PENALTY.  Museums. 

25  USC  3007 

(a)  Penalty. — Any  museum  that  fails  to  comply  with  the  require- 
ments of  this  Act  may  be  assessed  a  civil  penalty  by  the  Secretary  of 
the  Interior  pursuant  to  procedures  established  by  the  Secretary 
through  regulation.  A  penalty  assessed  under  this  subsection  shall 
be  determined  on  the  record  after  opportunity  for  an  agency  hear- 
ing. Each  violation  under  this  subsection  shall  be  a  separate  offense. 

(h)  Amount  of  Penalty. — The  amount  of  a  penalty  assessed 
under  subsection  (a)  shall  be  determined  under  regulations  promul- 
gated pursuant  to  this  Act,  taking  into  account,  in  addition  to  other 
factors — 

(1)  the  archaeological,  historical,  or  commercial  value  of  the 
item  involved; 

(2)  the  damages  suffered,  both  economic  and  noneconomic,  by 
an  aggrieved  party,  and 

(3)  the  number  of  violations  that  have  occurred. 

(c)  Actions  To  Recover  Penalties. — If  any  museum  fails  to  pay  Courts, 
an  assessment  of  a  civil  penalty  pursuant  to  a  final  order  of  the 
Secretary  that  has  been  issued  under  subsection  (a)  and  not  ap- 
pealed or  after  a  final  judgment  has  been  rendered  on  appeal  of  such 
order,  the  Attorney  General  may  institute  a  civil  action  in  an 
appropriate  district  court  of  the  United  States  to  collect  the  penalty. 

In  such  action,  the  validity  and  amount  of  such  penalty  shall  not  be 
subject  to  review. 

(d)  Subpoenas. — In  hearings  held  pursuant  to  subsection  (a), 
subpoenas  may  be  issued  for  the  attendance  and  testimony  of  wit- 
nesses and  the  production  of  relevant  papers,  books,  and  documents. 
Witnesses  so  summoned  shall  be  paid  the  same  fees  and  mileage 
that  are  paid  to  witnesses  in  the  courts  of  the  United  States. 

SEC.  10.  GRANTS.  25  USC  3008. 

(a)  Indian  Tribes  and  Native  Hawaiian  Organizations. — The 
Secretary  is  authorized  to  make  grants  to  Indian  tribes  and  Native 
Hawaiian  organizations  for  the  purpose  of  assisting  such  tribes  and 
organizations  in  the  repatriation  of  Native  American  cultural  items. 

(b)  Museums. — The  Secretary  is  authorized  to  make  grants  to 
museums  for  the  purpose  of  assisting  the  museums  in  conducting 
the  inventories  and  identification  required  under  sections  5  and  6. 

SEC.  11.  SAVINGS  PROVISIONS.  25  USC  3009. 

Nothing  in  this  Act  shall  be  construed  to — 

(1)  limit  the  authority  of  any  Federal  agency  or  museum  to — 
(A)  return  or  repatriate  Native  American  cultural  items 
to  Indian  tribes,  Native  Hawaiian  organizations,  or  individ- 
uals, and 


15 


104  STAT.  3058  PUBLIC  LAW  101-601-NOV.  16,  1990 

(B)  enter  into  any  other  agreement  with  the  consent  of 
the  culturally  affiliated  tribe  or  organization  as  to  the 
disposition  of,  or  control  over,  items  covered  by  this  Act; 

(2)  delay  actions  on  repatriation  requests  that  are  pending  on 
the  date  of  enactment  of  this  Act; 

(3)  deny  or  otherwise  affect  access  to  any  court; 

(4)  limit  any  procedural  or  substantive  right  which  may 
otherwise  be  secured  to  individuals  or  Indian  tribes  or  Native 
Hawaiian  organizations;  or 

(5)  limit  the  application  of  any  State  or  Federal  law  pertain- 
ing to  theft  or  stolen  property. 

25  USC  3010.  SEC.  12.  SPECIAL  RELATIONSHIP  BETWEEN  FEDERAL  GOVERNMENT  AND 

INDIAN  TRIBES. 

This  Act  reflects  the  unique  relationship  between  the  Federal 

Government  and  Indian  tribes  and  Native  Hawaiian  organizations 

and  should  not  be  construed  to  establish  a  precedent  with  respect  to 

any  other  individual,  organization  or  foreign  government. 

25  USC  3011.  SEC.  13.  REGULATIONS. 

The  Secretary  shall  promulgate  regulations  to  carry  out  this  Act 
within  12  months  of  enactment. 
25  USC  3012.  SEC.  14.  AUTHORIZATION  OF  APPROPRIATIONS. 

There  is  authorized  to  be  appropriated  such  sums  as  may  be 
necessary  to  carry  out  this  Act. 

25  USC  3013.  SEC.  15.  ENFORCEMENT. 

Courts  The  United  States  district  courts  shall  have  jurisdiction  over  any 

action  brought  by  any  person  alleging  a  violation  of  this  Act  and 
shall  have  the  authority  to  issue  such  orders  as  may  be  necessary  to 
'  enforce  the  provisions  of  this  Act. 

a  Approved  November  16,  1990. 


LEGISLATIVE  HISTORY— H.R.  5237: 


HOUSE  REPORTS:  No.  101-877  (Comra.  on  Interior  and  Insular  Affairs). 
CONGRESSIONAL  RECORD,  Vol.  136  (1990): 

Oct.  22,  considered  and  passed  House. 

Oct.  25.  considered  and  passed  Senate;  passage  vitiated. 

Oct.  26,  reconsidered  and  passed  Senate,  amended. 

Oct.  27,  House  concurred  in  Senate  amendments. 

o 


16 

Senator  Inouye.  This  morning  we  have  two  panels,  and  I  would 
like  to  call  upon  the  first  panel:  The  associate  director  of  the  Cul- 
tural Resource  Stewardship  and  Partnerships,  National  Park  Serv- 
ice, Katherine  H.  Stevenson;  the  chairperson  of  the  Review  Com- 
mittee of  Santa  Clara  Pueblo,  Tessie  Naranjo;  and  a  member  of  the 
Review  Committee  and  of  the  Peabody  Essex  Museum  of  Salem, 
Massachusetts,  Dan  Monroe. 

Ladies  and  gentlemen,  welcome.  May  I  call  upon  Associate  Direc- 
tor Stevenson. 

STATEMENT  OF  KATHERINE  H.  STEVENSON,  ASSOCIATE  DI- 
RECTOR, CULTURAL  RESOURCE  STEWARDSHIP  AND  PART- 
NERSHIPS, NATIONAL  PARK  SERVICE,  DEPARTMENT  OF  THE 
INTERIOR,  WASHINGTON,  DC,  ACCOMPANIED  BY  FRANCIS 
McMANAMON,  DEPARTMENTAL  CONSULTING  ARCHAEOLO- 
GIST 

Ms.  Stevenson.  Thank  you,  Mr.  Chairman. 

Mr.  Chairman,  I  very  much  appreciate  this  opportunity  to  offer 
the  views  of  the  National  Park  Service  and  the  Secretary  of  the  In- 
terior on  the  implementation  of  the  Native  American  Graves  Pro- 
tection and  Repatriation  Act. 

I  have  formal  remarks,  which  I'd  like  to  submit  for  the  record, 
and  then,  if  I  may,  a  synopsis  of  my  remarks. 

Senator  Inouye.  Without  objection,  the  full  statements  of  all  our 
witnesses  will  be  made  part  of  the  record. 

Ms.  Stevenson.  Thank  you,  Mr.  Chairman. 

NAGPRA  was  enacted  on  November  16,  1990,  to  address  the 
rights  of  lineal  descendants,  Indian  tribes,  and  Native  Hawaiian  or- 
ganizations to  Native  American  human  remains,  funerary  objects, 
sacred  objects,  and  objects  of  cultural  patrimony  with  which  they 
are  affiliated. 

The  Secretary  of  the  Interior  is  responsible  for  implementing  in 
three  separate  areas:  Development  of  regulations,  establishment  of 
a  grants  program,  and  establishment  of  a  Review  Committee  to  ad- 
vise on  regulations  and  assist  in  implementation. 

As  far  as  the  regs  are  concerned,  as  you  have  mentioned,  the 
final  regs  have  been  published  on  December  4,  1995,  and  I  have 
a  copy  of  those  for  people  who  may  not  have  a  copy,  since  it  was 
so  recent. 

On  May  28,  1993,  we  published  the  proposed  regulations.  We  re- 
ceived many,  many  comments.  There  was  much  consultation  with 
the  Review  Committee  during  the  period  September  23  through 
May  1994.  The  draft  final  rule  was  published  in  September  1994 
and  received  extensive  and  thorough  review.  The  final  rule  was 
published,  as  I  just  said,  on  December  4. 

In  terms  of  the  grants,  we  had  funds  appropriated  in  fiscal  year 
1994,  fiscal  year  1995,  and  they  are  proposed  for  fiscal  year  1996. 
During  that  period  we  awarded  83  grants  totaling  $4.37  million. 
Those  grants  helped  assist  educational  workshops,  inventories,  re- 
views, and  coordinated  discussions. 

The  Review  Committee  was  established  in  April  1992.  They  have 
met  11  times.  They  have  been  deeply  involved  with  the  regulations, 
and  they  have  facilitated  resolution  of  disputes  when  they  have 
been  called  to  their  attention.  They  have  been  dedicated  and  re- 


17 

sponsible  colleagues,  and  I'd  like  to  offer  them  my  compliments  and 
thanks  for  being  such  a  delight  to  work  with. 

Thus  far,  847  museums  and  Federal  agencies  have  provided  sum- 
maries to  the  Indian  tribes  and  Native  Hawaiian  organizations. 
The  inventories  are  now  being  sent.  We  have  received  459  thus  far 
but,  as  you  know,  the  deadline  is  not  until  next  May. 

The  museums  and  Federal  agencies  have  announced,  as  you  just 
said,  willingness  to  repatriate  2,713  human  remains,  122,000  fu- 
nerary objects,  212  sacred  objects,  and  16  of  cultural  patrimony. 

As  you  know,  you've  been  very  supportive  of  this  bill  and  of  our 
agency's  efforts  to  implement  the  bill.  We  need  your  support  to  as- 
sure that  its  complicated  and  very  sensitive  process  continues.  We 
also  ask  your  indulgence  as  we  downsize  and  live  within  our  budg- 
et. Things  may  slow  down  as  more  notices  are  published  and  there- 
fore the  potential  for  disputes  grows. 

We  appreciate  very  much  your  willingness  to  have  us  testify  here 
today. 

That  concludes  my  remarks.  Thank  you  very  much. 

[Prepared  statement  of  Ms.  Stevenson  appears  in  appendix.] 

Senator  Inouye.  Thank  you  very  much,  Ms.  Stevenson. 

I  will  question  the  witnesses  as  we  go  along  instead  of  waiting 
until  the  full  panel  concludes. 

Ms.  Stevenson,  in  your  testimony  you  indicated  that  337  grant 
proposals  were  submitted,  and  with  a  total  request  of  over  $30  mil- 
lion, and  you  have  indicated  in  your  testimony  that  the  grant  pro- 
gram is  needed  now  more  than  ever. 

Ms.  Stevenson.  Yes,  sir. 

Senator  Inouye.  What  level  of  funding  on  an  annual  basis  would 
be  adequate  to  meet  this  need? 

Ms.  Stevenson.  We  have  requested  in  the  past  few  years  $2.29 
million  to  continue  the  grant  program  authorized  under  NAGPRA. 
We  anticipate  that  for  1996,  and  we're  very  hopeful  that  we'll  re- 
ceive that  appropriation. 

Senator  Inouye.  Would  $2.3  be  sufficient,  although  you  re- 
quested nearly  $30  million? 

Ms.  Stevenson.  That's  the  Administration's  request,  Senator. 

Senator  Inouye.  Are  you  suggesting  that  $27  million  worth  of 
grant  requests  were  inappropriate? 

Ms.  Stevenson.  No,  sir;  not  under  any  circumstances.  These 
times  of  fiscal  restraint  make  it  very,  very  difficult  for  us  to  meet 
these  requests,  and 

Senator  Inouye.  And  these  are 

Ms.  STEVENSON[continuing].  Of  course,  any  additional  funds  are 
welcome. 

Senator  Inouye.  These  are  appropriate? 

Ms.  Stevenson.  They  are  very  appropriate  requests. 

Senator  Inouye.  So  if  funds  were  available,  you  would  be  re- 
questing $30  million? 

Ms.  Stevenson.  If  funds  were  available,  we  would  be  requesting 
$30  million. 

Senator  Inouye.  Is  this  matter  given  high  priority  in  your  agen- 
cy? 

Ms.  Stevenson.  Yes,  sir;  it  is.  I  think  it  is  worthwhile  noting 
that,  while  other  programs  have  received  rather  significant  cuts, 


18 

this  has  stayed  at  the  level  and  the  1995  and  1996  budget  had  re- 
mained stable,  which  I  think  one  couldn't  say  about  many  of  the 
other  programs. 

Senator  Inouye.  Ms.  Stevenson,  as  you  are  aware,  most  of  the 
tribes  are  recognized  by  the  Federal  Government  and  some  are  rec- 
ognized by  States.  Do  you  include  Indian  tribes  that  are  recognized 
by  States  in  which  they  are  located  but  which  may  not  be  federally- 
recognized  as  Native  Americans? 

Ms.  STEVENSON.  The  definition  the  we  have  chosen  to  use  is  con- 
sistent with  the  usage  developed  in  connection  with  the  American 
Indian  Self-Determination  Act,  which  limits  standing  to  Indian 
tribes  and  Alaska  Native  villages  and  corporations  recognized  as  el- 
igible for  the  special  programs  and  services  provided  by  the  Bureau 
of  Indian  Affairs  [BIA]  because  of  their  status  as  Indians.  We  chose 
this  definition  for  consistency  within  the  Department  of  the  Inte- 
rior. 

Senator  Inouye.  Do  you  not  believe  that  these  are  men  and 
women  who  lived  on  this  land  many  centuries  ago  and  they  are  In- 
dians, no  matter  whether  we  recognize  them  or  the  States  recog- 
nize them? 

Ms.  Stevenson.  I  believe  that  personally,  sir.  I  think  the  Depart- 
ment of  the  Interior  has  to  have  standards  which  are  fair  and 
equally  applied  to  all  the  people  with  whom  we  work,  and  that's 
why  we  chose  this  definition. 

Senator  Inouye.  On  the  matter  of  extending  respect  for  those 
who  have  departed,  do  you  not  think  standards  should  be  univer- 
sal? Or  would  the  Department  object  if  an  amendment  is  provided 
that  would  cover  the  State-recognized  Indian  tribes? 

Ms.  Stevenson.  I  think  we'd  have  to  think  pretty  seriously  about 
that,  and  we'd  be  happy  to  get  back  to  you  on  that  very  serious 
question. 

Senator  Inouye.  Thank  you.  Do  you  believe  that  it  would  be 
helpful  or  advisable  for  the  Congress  to  amend  this  act  to  authorize 
legal  actions  to  be  initiated  by  those  who  may  qualify  to  stand  in 
a  guardianship  capacity  for  human  remains  in  order  that  the  Na- 
tive American  human  remains  are  not  desecrated  in  any  inventory 
process  or  in  any  other  aspect  of  the  repatriation  process?  This  is 
in  response  to  the  recent  decision  that  I  cited. 

Ms.  Stevenson.  You  raise  some  very  serious  issues  here,  Sen- 
ator, and  I  wouldn't  want  to  answer  quickly  and  not  have  us  have 
a  chance  to  think  about  them  very  seriously  and  make  some  sug- 
gestions to  you  with  some  thought. 

Senator  Inouye.  Will  you  have  your  counsel  look  at  this  and  re- 
spond to  us? 

Ms.  Stevenson.  Yes,  sir;  we  will.  Thank  you  very  much. 

Senator  Inouye.  And  the  same  thing  about  whether  information 
about  the  remains  should  be  exempted  from  the  public  disclosure 
under  the  Freedom  of  Information  Act. 

Ms.  Stevenson.  We'll  provide  a  thoughtful  response  to  you,  sir. 

[Information  provided  in  Ms.  Stevenson's  prepared  statement 
which  appears  in  appendix.] 

Senator  Inouye.  In  your  testimony  you  stated  that  in  the  past 
2  years  337  grant  proposals  had  been  submitted  and  83  were  fund- 


19 

ed.  Of  the  83  grant  awards,  how  many  went  to  tribes  in  fiscal  year 

1994  and  1995? 

Ms.  Stevenson.  Roughly  one-half  went  to  tribes  and  one-half 
went  to  museums.  We  can  provide  a  breakdown  of  all  of  those 
grant  awards  if  you  wish. 

Senator  Inouye.  I  believe  that  would  be  most  helpful. 

Ms.  Stevenson.  Yes,  sir. 

[Information  follows:! 

In  fiscal  year  1994,  16  grants  were  provided  for  Indian  tribes,  and  in  fiscal  year 

1995  the  number  of  grants  to  Indian  tribes  was  22,  for  a  total  of  38  grants.  In  addi- 
tion, many  of  the  grants  to  museums,  for  compliance  with  the  NAGPRA  inventory 
requirement,  included  funds  to  provide  for  members  of  Indian  tribes  to  travel  to  mu- 
seums for  consultations  or  otherwise  supported  Indian  tribe  activities  related  to 
NAGPRA. 

Senator  Inouye.  The  act  requires  that  museums  and  Federal 
agencies  are  required  to  conduct  inventories  and  submit  summaries 
of  their  collections.  You  also  mentioned  in  your  testimony  that 
there  have  been  a  number  of  museums  that  have  applied  for  exten- 
sions. How  many  museums  have  requested  and  applied  for  exten- 
sions? 

Ms.  Stevenson.  As  you  know,  the  inventories  are  required  to  be 
done  by  November  16,  but  they  don't  need  to  be — the  tribes  don't 
need  to  be  notified  until  May  16.  So  we  anticipate,  although  we've 
received  459  inventories,  that  some  will  still  be  coming  in. 

Up  to  now,  73  museums  have  appealed  to  the  Secretary  for  ex- 
tension to  the  deadline.  Most  anticipate  that  they'll  be  done  by  No- 
vember 16,  1996,  and  about  21  museums  have  asked  for  longer  pe- 
riods of  time. 

We  are  now  evaluating  those  appeals  and  will  make  rec- 
ommendations to  the  Secretary  on  ones  that  are  appropriate  for  ex- 
tensions. 

Senator  Inouye.  So,  in  your  view,  it  is  moving  along  according 
to  schedule? 

Ms.  Stevenson.  It's  moving  along,  sir.  Yes,  sir. 

Senator  Inouye.  It  is  my  understanding  that  it  was  Congress'  in- 
tent to  encourage  repatriation  and  not  to  delay  or  limit  the  author- 
ity of  a  museum  to  repatriation.  However,  it  has  been  brought  to 
my  attention  that  section  10.10.B.2  of  the  regulations  would  pre- 
vent any  repatriation  of  human  remains  and  associated  funerary 
objects  until  after  a  museum  finally  completes  its  inventory.  Is  that 
correct? 

Ms.  Stevenson.  Apparently  not,  sir.  If  I  may,  I'd  introduce  Dr. 
Francis  McManamon,  the  departmental  consulting  archaeologist. 
Frank,  would  you  join  me? 

Frank  is  the  lead  agent  for  the  implementation  of  this  act  within 
the  Department. 

Mr.  McManamon.  Thank  you,  Mr.  Chairman.  It  is  a  pleasure  to 
be  here. 

We  have  consistently  encouraged  both  agencies  and  museums  to 
complete  those  portions  of  inventories  for  their  collections  where 
there  aren't  questions  of  cultural  affiliation  or  definition  or  things 
like  that,  and  to  undertake  repatriation  as  soon  as  possible  on 
those. 

I  would  have  to  look  at  the  specific  section,  which  I  haven't  done 
since  you  asked  the  question,  but  that  should  not  be  the  reading 


20 

of  that  section,  and  if  it  appears  to  be,  we  can  certainly  redouble 
our  efforts  to  emphasize  that  that's  not  the  case. 

Senator  Inouye.  We  would  appreciate  a  response  on  this. 

Mr.  McManamon.  Well  be  happy  to  provide  it. 

[Information  provided  in  Ms.  Stevenson's  prepared  statement 
which  appears  in  appendix.] 

Senator  Inouye.  You  have  indicated  that  the  Department  of  the 
Interior  is  currently  considering  proposed  regulations  to  implement 
the  civil  penalty  provisions  under  section  10  regarding  non-compli- 
ance with  the  act.  When  do  you  anticipate  that  these  proposed  reg- 
ulations will  be  published? 

Ms.  Stevenson.  Section  9  of  the  statute  authorized  the  Secretary 
to  assess  civil  penalties.  Regulations  required  to  ensure  due  process 
have  been  developed  in  consultation  with  the  Review  Committee. 
The  Department  is  considering  issuing  these  procedures  as  an  in- 
terim rule  that  would  effect  immediately  to  guard  against  muse- 
ums avoiding  an  assessment  because  the  statute  of  limitations  ex- 
pired. 

For  example,  the  Office  of  the  Solicitor  has  estimated  that  one 
civil  penalty  case  from  initial  investigation  to  final  appeal  could 
cost  the  Department  $100,000  in  staff  time  and  resources,  so  we're 
anxious  to  get  these  done  as  quickly  as  possible. 

Senator  Inouye.  How  will  your  Department,  the  Department  of 
the  Interior,  work  with  Indians  tribes  to  determine  the  disposition 
and  treatment  of  unidentified  human  remains?  Are  there  any  pro- 
posals presently  under  consideration? 

Ms.  Stevenson.  May  I  ask  Dr.  McManamon  to  answer? 

Senator  Inouye.  Please. 

Mr.  McManamon.  Thank  you.  The  Review  Committee,  Mr. 
Chairman,  has  considered  this  particular  question  of  how  to  treat 
culturally  unidentifiable  Native  American  human  remains,  and 
they  are  considering  a  set  of  recommendations  that  they  will  even- 
tually be  making  to  the  Secretary  of  the  Interior  about  how  best 
to  handle  the  treatment  of  this  particular  category  of  remains. 

I  think  the  Review  Committee  representatives  who  are  here  are 
probably  going  to  talk  about  this  in  some  more  detail. 

We  have  circulated  an  initial  draft  of  those  recommendations, 
and  we  received  something  like  120  written  responses  to  it,  which 
the  Review  Committee  considered  at  their  last  meeting  in  Anchor- 
age. The  plan  now  is  for  them  to  consider  a  second  draft  of  those 
recommendations  and  to  have  further  discussions  on  it  at  their 
next  meeting. 

So  the  issue  is  seen  as  a  serious  one,  one  that  needs  consider- 
ation, and  those  considerations  are  being  taken  into  account  at  this 
time. 

Senator  Inouye.  I  can  assure  you  that  the  committee  is  pleased 
to  hear  that. 

Thank  you  very  much. 

Senator  Dorgan. 

STATEMENT  OF  HON.  BYRON  L.  DORGAN,  U.S.  SENATOR  FROM 

NORTH  DAKOTA 

Senator  Dorgan.  Mr.  Chairman,  thank  you  very  much. 


21 

I  have  two  other  hearings  that  are  now  in  progress  in  other  com- 
mittees, so  I  am  unable  to  stay  for  the  entire  proceedings  today. 

When  I  was  a  Member  of  the  House  of  Representatives  I  was  in- 
volved in  the  enactment  of  the  legislation  that  creates  the  cir- 
cumstances that  brings  us  to  this  hearing  today.  And  I  felt  then 
and  feel  now  that  the  circumstances  under  which  both  public  sector 
and  private  sector  institutions  have  warehoused,  in  effect,  human 
remains  and  other  objects — especially  the  human  remains  of  Native 
Americans — in  come  cases  for  well  over  a  century,  that  it  really 
called  for  a  process  by  which  those  remains  could  be  given  back  to 
the  tribes  and  the  tribes  could  give  them  the  proper  respect  and 
burial  that  they  choose  to  do. 

When  we  got  involved  in  this  originally  in  passing  a  piece  of  leg- 
islation, we  did  not  feel  that  this  was  rocket  science,  especially 
when  you  have  institutions  that  have  had  these  remains  for  nearly 
a  century,  and  then  we  have  people  say  to  us,  "But  we  need  time 
to  study  them."  You  take  a  look  at  a  century  of  warehousing,  and 
you  figure  if  there  is  any  study  to  have  been  done,  you'd  have 
thought  most  of  that  study  would  be  completed  and  that  this  could 
move  forward  then  expeditiously  after  the  law  was  passed. 

There  is  a  substantial  amount  of  frustration  that  we  will  hear 
today  from  witnesses  about  the  general  pace  of  compliance  with 
this  law.  Some  of  it  may  be  that  enough  resources  aren't  available. 
I  don't  know  that.  Some  of  it  may  just  be  foot-dragging.  Some  of 
it  may  simply  be  the  bureaucratic  system  that  doesn't  move  very 
fast. 

But  some  of  the  frustration  I  think  is  certainly  meritorious,  from 
meeting  deadlines  to  making  appointments  on  time,  publishing  reg- 
ulations on  time. 

Tribal  Chairperson  Jesse  Taken  Alive,  from  the  Standing  Rock 
Sioux  Tribe,  will  be  testifying  today,  and  he's  accompanied  by  Tim 
Mentz,  who  is  a  representative  on  the  NAGPRA  Review  Board,  and 
I  have  reviewed  Chairman  Taken  Alive's  testimony,  and  he,  I 
think,  will  testify  to  what  a  lot  of  others  feel  about  the  frustration 
of  this  process. 

We  want  to  get  this  moving  and  do  it  in  the  right  way.  And  espe- 
cially there  is  going  to  be  frustration  expressed  about  the  lack  of 
input  by  tribes  in  the  development  of  regulations,  and  our  anticipa- 
tion in  the  spirit  of  this  legislation  was  that  we  would  have  full 
input  and  cooperation  and  a  spirit  of  partnership  along  the  way, 
and  I  think  some  of  the  testimony  that  you  will  hear  today,  Mr. 
Chairman,  will  demonstrate  that  a  lot  of  folks  feel  that  there  has 
not  been  adequate  cooperation. 

So  this  hearing  is,  I  think,  a  positive  step.  I  think  Chairman 
Taken  Alive  will  probably  echo  that,  as  well.  This  is  a  positive  step 
forward  because  we  need  finally  to  get  these  issues  resolved. 

These  issues  related  to  the  State  Historical  Society  and  Museum 
in  North  Dakota  that  has  human  remains,  the  Smithsonian  that 
has  human  remains.  And  when  I  got  involved  in  looking  at  this  I 
concluded  what  I  think  you  concluded  and  many  others  have — 
these  ought  to  be  returned,  and  they  ought  to  be  returned  on  an 
expedited  basis  in  a  reasonable  way,  and  I  hope  this  hearing  now 
begins  to  unsnarl  some  of  the  knots  that  have  occurred  in  the  bu- 
reaucratic process  by  which  we  can  finally  get  that  done. 


22 

So,  Mr.  Chairman,  thank  you  very  much  for  holding  these  hear- 
ings. I  welcome  Chairman  Taken  Alive  and  my  friend,  Mr   Mentz 
from  the  Standing  Rocks. 

[Prepared  statement  of  Senator  Dorgan  appears  in  appendix.] 

Senator  Inouye.  Thank  you  very  much. 

May  I  now  call  upon  the  chairperson  of  the  NAGPRA  Review 
Committee,  Ms.  Tessie  Naranjo. 

STATEMENT  OF  TESSIE  NARANJO,  CHAIRPERSON,  NAGPRA 
REVIEW  COMMITTEE,  SANTA  CLARA  PUEBLO,  ESPANOLA,  NM 

MS.  Naranjo.  Thank  you,  Chairman  Inouye. 

I  appreciate  the  opportunity  to  offer  testimony  as  a  member  and 
chairperson  of  the  National  Review  Committee  for  NAGPRA. 

The  individuals  selected  in  the  spring  of  1992  to  serve  as  Review 
Committee  members  have  worked  for  4  years,  meeting  at  least 
twice  each  year,  working  on  various  aspects  of  NAGPRA,  such  as 
refining  the  regulations  which  implement  the  statute.  These  regu- 
lations have  just  been  published  in  the  "Federal  Register." 

Other  activities  of  the  Review  Committee  include  consideration  of 
five  dispute  cases,  oral  testimony  from  93  individuals  during  1992 
to  1994,  many  of  whom  represented  Indians  tribes  or  are  of  Indians 
descent. 

At  our  last  meeting  in  Anchorage,  AK,  October  16-18  of  this 
year,  we  discussed  the  120  written  comments  received  on  our  draft 
recommendations  regarding  the  disposition  of  culturally  unidentifi- 
able human  remains  and  associated  funerary  objects. 

We  have  experienced  frustrations  over  a  number  of  issues.  These 
frustrations  and  concerns  became  the  recommendations  in  our 
1993/1994  report  to  Congress,  and  I'll  summarize  the  recommenda- 
tions excluding  the  recommendation  that  the  regulations  be  ap- 
proved as  soon  as  possible  because  they,  in  fact,  have  just  been 
published. 

No.  1,  that  Congress  clarify  the  meaning  of  Indian  tribe  within 
NAGPRA  in  order  to  permit  Native  American  groups  not  presently 
recognized  by  BIA,  the  BIA,  to  repatriate  their  human  remains,  fu- 
nerary objects,  sacred  objects,  or  objects  of  cultural  patrimony. 

No.  2,  that  Congress  appropriate  at  least  $10  million  for  fiscal 
year  1996  to  help  Indians  tribes,  Native  Hawaiian  organizations, 
museums,  and  universities  in  complying  with  NAGPRA  directives. 

No.  3,  that  Congress  take  steps  to  assure  that  the  Smithsonian 
complies  with  all  NAGPRA  requirements. 

No.  4,  that  Congress  consider  legislation  to  protect  Native  Amer- 
ican and  Native  Hawaiian  graves  located  on  State  or  private  lands 
from  grave-robbing  and  other  kinds  of  destruction. 

Now  I  wish  to  make  comments  with  regard  to  funding.  For  fiscal 
year  1994  and  fiscal  year  1995,  the  total  number  of  NAGPRA 
grants  was  under  $5  million,  and  the  total  request  from  tribes  and 
museums  was  $30  million.  The  number  of  grant  requests  will  in- 
crease with  this  coming  fiscal  year  1996  grant  applications.  We 
need  increased  funding  for  the  grant  program. 

Increased  funding  is  also  needed  for  the  costs  involved  in  "Fed- 
eral Register"  notices  due  to  the  increased  number  of  inventory  no- 
tices of  human  remains  and  associated  funerary  objects. 


23 

One  of  the  effects  will  be  the  inundation  of  work  related  to  the 
documentation  of  these  inventories  of  human  remains  by  the 
NAGPRA  administrative  staff  and  the  Review  Committee. 

We  expect  that,  as  the  inventory  notices  increase,  the  number  of 
disputes  will  rise.  Disputes  always  prolong  conflicts  and  involve  the 
time  of  the  limited  NAGPRA  staff.  It  also  requires  more  consider- 
ation of  dispute  hearings  by  the  Review  Committee. 

Additionally,  more  funding  is  needed  by  the  NAGPRA  staff  to  im- 
plement the  civil  penalties  section  currently  being  reviewed  by  the 
Department.  This  section  deals  with  those  individuals  and  institu- 
tions who  are  in  noncompliance.  Investigative  work  is  a  crucial 
process  in  determining  noncompliance. 

Our  recommendation  in  our  1993/1994  report  to  Congress  was 
that  it  appropriate  $10  million  in  fiscal  year  1996  to  continue  to 
implement  the  Native  American  Graves  Protection  and  Repatri- 
ation Act.  This  amount  is  absolutely  essential  if  we  are  to  effec- 
tively carry  out  the  intent  of  NAGPRA. 

Last,  Mr.  Chairman,  I  want  to  make  mention  that  the  Keepers 
of  the  Treasures,  a  national  organization  promoting  cultural  pres- 
ervation of  tribes,  is  in  support  of  the  efforts  of  the  NAGPRA  staff 
and  the  Review  Committee  and  supports  our  request  for  $10  mil- 
lion for  fiscal  year  1996. 

Thank  you. 

[Prepared  statement  of  Ms.  Naranjo  appears  in  appendix.] 

Senator  INOUYE.  I  thank  you  very  much,  Ms.  Naranjo. 

May  I  call  upon  Senator  Campbell.  Would  you  like  to  make  an 
opening  statement? 

Senator  Campbell.  Thank  you,  Mr.  Chairman.  I'd  just  like  to  ask 
unanimous  consent  to  introduce  a  written  statement  for  the  record. 

Senator  Inouye.  Without  objection. 

[Prepared  statement  of  Senator  Campbell  appears  in  appendix.] 

STATEMENT  OF  HON.  BEN  NIGHTHORSE  CAMPBELL,  U.S. 
SENATOR  FROM  COLORADO 

Senator  Campbell.  We've  got  three  bills  being  marked  up  in  En- 
ergy, so  I'm  only  going  to  stay  a  few  moments,  but,  as  a  person  who 
has  been  vitally  interested  in  that,  in  fact,  even  before  this  legisla- 
tion was  dealt  with  in  1990,  going  back  to  our  days  when  we 
worked  on  the  Museum  of  the  American  Indian  bill  and  modified 
that  language  to  start  a  process  by  which  we  could  return  the  re- 
mains that  were  housed  over  at  a  Smithsonian  back  to  tribal 
groups  that  could  claim  them,  I've  been  just  as  interested  in  this 
as  you  have  and  many  Indian  people  in  this  country. 

Certainly,  I'm  somewhat  concerned,  too,  at  the  slow  progress  that 
Interior  has  made  in  implementing  NAGPRA,  but  I  guess  that  part 
of  that's  our  fault,  because  in  times  of  budgetary  constraints  we 
probably  haven't  appropriated  enough  money  to  let  them  do  the 
job. 

I  apologize  for  not  being  here  to  the  Indian  people  that  have  al- 
ready testified,  and  the  Park  Service,  too,  but  I  want  to  assure  you, 
Mr.  Chairman,  that  I  look  forward  to  working  with  you  to  try  to 
make  sure  that  this  act  is  completely  implemented,  and  at  the  ear- 
liest convenience. 

Thank  you. 


24 

Senator  Inouye.  I  thank  you  very  much,  and  I  can  assure  you 
that  we  are  singing  from  the  same  hymnal. 

Ms.  Naranio,  as  the  primary  sponsor  of  this  bill,  I  can  assure  you 
that  it  was  the  intent  of  this  committee  to  include  all  Indian  tribes 
within  the  scope  of  the  act's  protection.  I  note  that  the  official  posi- 
tion of  the  definition  of  Native  American  is  just  for  those  federally- 
recognized.  If  it  requires  amendment,  I  will  propose  such  an 
amendment. 

Ms.  Naranjo,  do  you  believe  that  the  human  remains,  funerary 
objects,  sacred  objects,  or  objects  of  cultural  patrimony  of  non-feder- 
ally-recognized tribes  should  receive  the  protection  of  this  act? 

Ms.  Naranjo.  I  do. 

Senator  Inouye.  You  have  made  several  recommendations.  One 
of  them  states  that  the  Congress  take  steps  to  assure  that  the 
Smithsonian  Institution  complies  with  all  requirements  of  the  act. 
Are  you  referring  to  the  National  Museum  of  the  American  Indian 
within  the  Smithsonian,  or  other  museums  within  the  Smithsonian 
complex? 

Ms.  Naranjo.  The  Museum  of  Natural  History  is  one  of  the  mu- 
seums that  I'm  referring  to,  one  of  the  sections  within  the  Smithso- 
nian Museum  that  I'm  referring  to. 

Senator  Inouye.  You  are  not  referring  to  the  American  Indian 
Museum? 

Ms.  Naranjo.  I  am  also  referring  to  the  American  Indian  Mu- 
seum. 

Senator  Inouye.  Would  it  be  possible  for  you  to  supply  us  with 
some  further  detailed  information  as  to  how  you  believe  that  these 
institutions  are  not  complying  with  all  the  requirements  of  the  act 
so  I  can  personally  call  upon  them  for  their  responses? 

Ms.  Naranjo.  Mr.  Chairman,  what  I'd  like  to  do  is  ask  Mr.  Dan 
Monroe,  also  on  the  Review  Committee,  to  respond  to  that  ques- 
tion. 

Senator  Inouye.  Fine. 

Mr.  Monroe.  Mr.  Chairman,  the  committee  has  had  some  con- 
cern regarding  this  issue,  as  has  the  museum  community.  At  the 
time  the  act  was  passed — you  may  remember  we  discussed  this  to- 
gether— we  expected  that  the  Smithsonian  would  adhere  to  all  the 
provisions  of  NAGPRA. 

Very  briefly,  the  situation  is  that  the  Smithsonian  is  currently 
acting  under  different  legislation,  and  that  the  Smithsonian  has 
made  ample  investment  and  considerable  progress,  which  I  think 
we  should  note,  in  carrying  out  the  general  intent  of  NAGPRA. 

However,  the  fact  is  that  the  Smithsonian  Institutions,  the  sepa- 
rate museums,  are  operating  under  different  policies.  The  Museum 
of  the  American  Indian  is  operating  under  a  "more  liberal"  policy 
than  NAGPRA.  The  rest  of  the  Smithsonian  Institution  is  operat- 
ing under  somewhat  different  policies. 

First  of  all,  they  have  not  filed  inventories  with  tribes  nor  do 
they  have  to  do  so.  They  have  not  filed  summaries,  nor  do  they 
have  to.  And  the  process,  very  briefly,  by  which  Native  American 
people  would  interact  with  the  Smithsonian  does  not  mirror 
NAGPRA  in  a  number  of  regards. 

The  committee's  point  is  simply  that  the  Smithsonian  is  the  na- 
tional museum.  We  again  wish  to  recognize  the  very  substantial  in- 


25 

vestment  that  the  Smithsonian  has  made  to  comply  with  the  gen- 
eral intent  of  NAGPRA,  but  it  has  been  our  feeling  all  along  that, 
as  the  national  museum,  it  is  reasonable  that  the  Smithsonian,  ei- 
ther by  policy  or  by  congressional  action,  comply  with  NAGPRA. 

That  will  require — just  my  final  point — that  some  steps  be  taken 
retroactively  because  the  Smithsonian  is  not  in  compliance  at  this 
point. 

Senator  Inouye.  I  can  assure  you  at  this  juncture  that  you  have 
correctly  stated  that,  at  the  time  of  the  passage  of  this  act,  the 
Smithsonian  Institution  prevailed  upon  the  committee  not  to  in- 
clude the  full  institution  in  the  act  until  such  time  as  an  overall 
institutional  policy  could  be  developed  which  might  reconcile  the 
differences  between  provisions  addressing  repatriation  and  the  Na- 
tive American  Museum  and  other  Smithsonian  museums. 

We,  in  the  Congress,  relied  upon  the  representations  of  the 
Smithsonian  at  that  time  that  recommendations  for  special  legisla- 
tion closely  paralleling  the  provisions  of  the  NAGPRA  would  be 
forthcoming. 

I  am  certain  you  will  recall  that  at  that  time  other  museums  and 
scientific  institutions  across  the  country  were  adamantly  opposed 
to  the  exclusion  of  the  Smithsonian— "Why  pick  on  us?"— and  that 
the  museums  and  scientific  institutions  agreed  to  accept  the  exclu- 
sion onlv  on  the  condition  that  special  legislation  would  subse- 
quently be  enacted  by  the  Congress. 

I  agree  with  you  that,  in  this  critically  important  policy  area,  the 
law  should  be  applied  evenly  and  without  exception.  So,  accord- 
ingly, I  will  be  calling  upon  the  Secretary  of  the  Institution  to  work 
with  the  committee  to  develop  such  legislation  that  we  promised 
that  would  apply  specifically  to  the  Smithsonian  and  which  would 
extend  the  coverage  to  that  institution,  so  I  give  you  my  pledge  on 
that,  sir. 
Mr.  Monroe.  Thank  you. 

Senator  Inouye.  Ms.  Naranjo,  I  am  certain  you  recall  that  in  my 
opening  remarks  I  cited  certain  rulings  of  the  recent  decision  in  the 
Federal  district  court  in  Hawaii,  and  I  would  like  to  ask  some  of 
the  questions  that  I  asked  Ms.  Stevenson. 

Do  you  believe  it  would  be  helpful  or  advisable  for  the  Congress 
to  amend  this  act  to  authorize  legal  actions  to  be  initiated  by  those 
who  may  qualify  to  stand  in  a  guardianship  capacity  for  human  re- 
mains so  that  Native  American  human  remains  are  not  desecrated? 
Ms.  Naranjo.  Yes. 

Senator  Inouye.  Do  you  believe  that  information  about  Native 
American  human  remains  should  be  exempted  from  public  disclo- 
sure under  the  Freedom  of  Information  Act?  I  have  asked  this  be- 
cause concern  has  been  expressed  by  several  tribal  leaders  that 
these  remains  should  not  be  further  desecrated,  and  that  is  why  I 
am  asking  you  this  question.  Or  would  you  like  to  think  about  this? 
Ms.  Naranjo.  Thank  you. 

Senator  Inouye.  Do  you  believe  that  there  was  adequate  con- 
sultation with  Indian  tribes  during  the  development  of  the  final 
regulations  to  implement  the  act? 

Ms.  Naranjo.  Mr.  Chairman,  I  do.  I  do  because  we  have  had  at 
least  10  meetings  now  in  the  past  4  years,  and  what  we  have  tried 
to  do,  as  Review  Committee  members,  is  to  go  to  as  many  tribal 


26 

communities  as  we  could.  That's  one  example  of  our  trying  to  reach 
out  to  all  the  tribal  communities,  understanding  and  respecting 
that  tribal  people  do  not  always  have  the  funds  to  travel.  Most  re- 
cently, we  were  in  Anchorage,  Alaska,  area  for  that  reason. 

Also,  as  we  had  drafts  of  the  regulations,  they  were  published  in 
the  "Federal  Register,"  and  there  was  that  opportunity  for  tribal 
people  to  respond  to  the  regulations. 

Also,  during  our  Review  Committee  meetings,  there  were  a  num- 
ber of  testimonies,  and  we  purposely  afforded  time  for  tribal  people 
to  take  that  opportunity  to  provide  testimony  on  different  matters. 

So  yes,  I  do,  Mr.  Chairman. 

Senator  Inouye.  Was  your  committee  involved  with  the  develop- 
ment of  the  criteria  for  time  extensions  during  the  inventory  proc- 
ess? 

Ms.  Naranjo.  No;  we  were  not. 

Senator  Inouye.  Are  you  satisfied  with  the  time  extensions? 

Ms.  Naranjo.  Mr.  Chairman,  I  know  that  we're  still  in  discus- 
sion on  that.  So,  as  far  as  the  deadline  is  concerned,  I  think  there 
needs  to  be  some  sort  of  reasonable  deadline.  For  example,  if  a  par- 
ticular museum  asks  for  27  years,  that's  outrageous,  as  far  as  I  can 
tell. 

Senator  Inouye.  Well,  I  thank  you  very  much. 

I  would  like  to  advise  the  witnesses  that  the  committee  will  be 
submitting  additional  questions.  Some  are  very  technical,  so  we'd 
like  to  give  you  some  time  to  review  them  and  respond  to  them. 

Now  may  I  call  upon  Mr.  Monroe,  a  member  of  the  NAGPRA  Re- 
view Committee. 

Mr.  Monroe.  Mr.  Chairman,  it  is  a  privilege  to  testify  here. 

Senator  Inouye.  Excuse  me. 

Mr.  Monroe.  Yes. 

Senator  Inouye.  Senator  Campbell,  did  you  have  any  questions? 

Senator  Campbell.  Mr.  Chairman,  no,  I  don't  have  any  ques- 
tions, but  I  guess  maybe  to  Ms.  Naranjo,  in  particular,  I'd  just  like 
to  pose  a  rhetorical  comment,  I  guess. 

We  get  so  bogged  down  in  these  committees  about  policy  and 
legal  action  and  authorizing  legislation  and  regulation  and  how  to 
implement  it  and  reviewing  things  that  I  often  wonder  what  the 
heck  ever  happened  to  sensitivity  and  fairness? 

I  don't  think  there  is  a  person  in  this  country  that  wouldn't  un- 
derstand what  Indian  people  went  through  if  it  was  their  grand- 
mothers or  their  grandfathers  when  you  re  talking  about  it.  But 
somehow,  when  its  not  Indian  grandmothers  or  grandfathers,  we 
get  all  bogged  down  in  this,  frankly,  long-winded,  rhetorical  debate. 

I'm  convinced  that  if  agencies  were  really  interested  in  getting 
something  done,  they  would  be  up  here  pushing  us  as  hard  as  a 
Indian  people  are  pushing  us,  and  we  deserve  to  be  pushed. 

I  thought  I'd  just  throw  that  out  to  let  you  know,  Ms.  Naranjo, 
that  some  of  us  are  iust  as  disturbed  as  you  are  about  the  lack  of 
emphasis  on  this  within  the  agencies,  and  the  lack  of  it  being  a  pri- 
ority issue  to  them,  too. 

I  want  you  to  not  leave  here  without  knowing  that  Senator 
Inouye,  and  I'm  sure  Senator  McCain  and  most  of  the  people  on 
this  committee,  including  me,  are  interested  in  trying  to  move  the 
process  forward  at  all  speed. 


27 

Ms.  Naranjo.  Thank  you  for  that  comment. 

Senator  Inouye.  I  can  assure  you  that  Senator  Campbell  speaks 
for  the  committee. 

I  recall,  when  we  first  initiated  discussions  on  this  matter  nearly 
a  decade  ago,  I  made  an  observation  that  if  the  skulls  and  human 
remains  in  custody  of  the  Smithsonian  were  Irish  skulls  or  French 
skulls  or  Chinese  Skulls,  you  would  have  had  an  avalanche  of  criti- 
cism and  concern  and  objection.  But  all  these  years  thousands  have 
somehow  been  kept  in  little  green  boxes  there  and  they  are  still 

there. 

Senator  Campbell.  Mr.  Chairman,  if  I  might  interject,  that  s  ex- 
actly the  problem.  With  everybody  else  in  this  country  we  talk 
about  human  remains  and  understand  the  reaction,  but  when  you 
talk  about  Indians,  they  somehow  become  artifacts. 

Senator  Inouye.  Yes. 

Senator  Campbell.  They  make  a  transition,  like  old  pots  and 
baskets  in  a  glass  case  instead  of  the  human  tragedy  that  has  gone 
along  with  how  they  were  collected  in  the  first  place. 

Thank  you. 

Senator  Inouye.  We  do  not  see  any  human  remains  of  pilgrims 
in  museums,  or  funerary  objects,  or  sacred  objects  of  pilgrims  in 
museums,  but  we  find  many  Native  American.  So  we  agree  with 
you,  and  we,  too,  are  rather  frustrated,  but  we  are  here  in  an  insti- 
tution that's  concerned  about  laws,  and  we  would  like  to  make  cer- 
tain that  when  we  do  establish  this  it  will  be  established  in  such 
a  manner  that  in  future  generations  no  one  will  be  able  to  chal- 
lenge or  question  the  intent  of  Congress  or  the  intent  of  this  Nation 
when  we  established  this  law. 

So,  even  with  even  with  the  frustrations,  we  are  willing  to  hang 
on  for  a  little  while  longer.  But,  as  Senator  Campbell  has  very  elo- 
quently indicated,  there  is  a  limit. 

Mr.  Monroe,  please  proceed. 

STATEMENT  OF  DAN  MONROE,  NAGPRA  REVIEW  COMMITTEE, 
PEABODY  ESSEX  MUSEUM,  SALEM,  MA 

Mr.  Monroe.  Mr.  Chairman,  members  of  the  committee,  I'm  Dan 
Monroe,  director  of  the  Peabody  Essex  Museum  in  Salem,  Massa- 
chusetts, member  of  the  Review  Committee,  and  immediate  past 
president  of  the  American  Association  of  Museums. 

While  I  think  all  of  us  feel  frustration  at  a  variety  of  things  in- 
volving implementation  of  this  act,  I'd  like  to  take  the  opportunity 
to  point  out  that  a  substantial  amount  of  progress  has  been  made 
and  that,  on  the  whole,  we  have  seen  both  tribes  and  museums  act- 
ing to  implement  this  act  in  good  faith  and  good  spirit. 

I  think  that  the  ruling  in  Hawaii  is  disturbing  on  a  number  of 
counts,  and  I'm  sure  the  Review  Committee  would  appreciate  the 
opportunity  to  respond  specifically. 

I'd  like  to  just  comment  very  briefly,  and  then  I'd  be  happy  to 
answer  questions. 

No.  1,  pointing  out  that  the  actions  that  have  been  taken  to  date 
for  implementation  have,  in  fact,  resulted  in  a  number  of  repatri- 
ations and  that  we  hear  in  testimony  around  the  country  that  this 
has  been  extremely  beneficial  to  Native  American  people  in  terms 


28 

of  restoring  a  sense  of  individual  and  tribal,  cultural,  and  religious 
integrity. 

It  has  also  been  helpful,  where  sacred  objects  have  been  re- 
turned, to  the  continuation  or  restoration  of  Native  American  reli- 
gious practices. 

And  a  final  benefit  that  I  would  like  to  point  out  is  that  there 
have  been  established  many  instances  of  partnership,  new  partner- 
ship between  museums  and  Native  American  tribes  and  people 
that  have  been  very  useful  to  understanding  collections  and  also  to 
be  able  to  present  an  accurate  and  fairer  picture  of  the  Native 
American  experience  in  this  Nation. 

I'd  like  to  comment  very  briefly  on  the  issue  of  promulgation  of 
regulations.  There  is  frustration  on  two  sides:  No.  1,  that  there 
wasn't  enough  input,  and  No.  2,  that  it  has  taken  5  years  to  get 
any  regulations  out. 

The  committee  has  made  it  clear  that  we  feel  that  it  is  critically 
important  there  be  ample  involvement  and  input  from  all  parties. 
It  is  also  important  that  these  regulations  move  forward  in  a  time- 
ly manner,  and  we'd  just  like  to  say  at  this  point  that  we'd  like  to 
see  the  remaining  sections  acted  upon  in  a  timely  manner. 

I  would  just  second  the  point  that  Ms.  Naranjo  made  that  we 
have  heard  a  great  deal  of  testimony,  and  at  some  point  you  have 
to  draw  the  line  and  move  forward. 

The  issue  of  financial  assistance  I  want  to  spend  a  little  bit  of 
time  on,  and  I  want  to  formally  correct  my  written  testimony, 
which  is  erroneous  and  you  have  my  apology  for  that. 

Part  of  the  reason  that  it  has  been  difficult  to  implement  this  act 
is  that  it  is  very  costly.  The  original  estimates  were  $40  million. 
I  can  tell  you  that  those  estimates  are  just  flat-out  wrong,  not  in- 
cluding Federal  agencies,  and  that  tribes  and  museums  neither  are 
in  a  position  to  support  costs  that  are  easily  well  over  $50  million, 
and  that's  very  conservative. 

I  just  want  to  end  by  saying  that  the  request— and  you're  going 
to  hear  it  again— for  $10  million  a  year  is  not  out  of  line.  We  un- 
derstand the  Department  of  the  Interior's  position  on  this,  but  the 
committee  has  made  it  clear  in  the  past  and  we'd  like  to  make  it 
clear  again  that  $2  million  a  year  is  not  sufficient  for  either  tribes 
or  museums,  particularly  now  that  inventories  have  been  filed  and 
there  needs  to  be  much  more  dialog. 

Tribes  are,  as  you  know,  getting  cut  very  hard  on  the  funding 
that  they  are  receiving,  and  they  are  already  in  difficult  straits  fi- 
nancially, so  I  just  want  to  underscore  that  the  issue  of  Federal 
support,  which  has  been,  at  best,  less  than  5  percent  of  the  total 
cost  here,  is  an  issue  for  successful  implementation  in  the  future. 

The  committee  has  dealt  with  this  issue  of  definition  of  tribe.  I 
just  want  to  go  on  the  record — and  we've  done  it  in  our  written  tes- 
timony—that we've  urged  the  Secretary  of  the  Interior  to  take  a 
more  liberal  definition  that  would  recognize  State  tribes.  Museums 
can't  make  decisions  about  who  tribes  are,  but  certainly  it's  pos- 
sible, we  believe,  to  broaden  that  definition,  and  we'd  like  to  see 
that  done  one  way  or  the  other. 

There  are  many  tribes  who  are  not  federally-recognized.  I  believe 
there  are  45  seeking  Federal  recognition  right  now,  many  of  which 
had  recognition  in  the  past. 


29 

We  discussed  the  issue  of  the  Smithsonian  Institution,  and  I 
won't  touch  on  that. 

The  remaining  issue  the  committee  faces,  in  addition  to  working 
with  the  Secretary  to  get  the  remaining  regulations  out  in  a  timely 
manner,  is  the  question  of  unidentified  remains.  It  is  a  difficult 
and,  frankly,  contentious  issue.  We're  working  diligently  on  it,  and 
we've  received  a  great  deal  of  testimony.  I'm  sure  that  you  will  be 
hearing  more  about  this  matter  in  the  future. 

I  would  just  like  to  close  by  recognizing  another  point  with  re- 
spect to  the  Department  of  the  Interior.  The  leadership  that  Dr. 
McManamon  and  his  small  staff  have  exercised  here,  while  it's  a 
tough  job,  I  think  warrants  recognition.  They've  done  a  good  job 
moving  this  along  within  the  context  of  a  very  big  bureaucracy  that 
frustrates  all  of  us. 

I'd  just  like  to  close  by  saying  two  things,  again.  While  there  are 
many  issues  and  problems  and  concerns  regarding  this  act — and 
you've  heard  some,  and  you'll  hear  some  more — I  think  we  should 
keep  in  mind  that  we're  making  advance,  and  that  the  relationship 
between  Native  Americans  and  museums,  universities,  and  Federal 
agencies  today  is  very  different  than  it  was  5  years  ago. 

I'd  like  to  personally  credit  Senator  Inouye  with  the  leadership 
you  exercised  in  bringing  this  about,  as  well  as  others. 

Finally,  I'd  conclude  by  saying  that  the  financial  issue  here — and 
you  hear  this  constantly,  but  we're  just  telling  you  the  truth — is  a 
major  factor,  and  the  current  amount  of  money  budgeted  in  the  De- 
partment of  the  Interior  for  grants  is  simply  not  sufficient. 
Thank  you. 

[Prepared  statement  of  Mr.  Monroe  appears  in  appendix.] 
Senator  Inouye.  Thank  you,  Mr.  Monroe. 

Then  would  you  suggest  that  the  $10  million  that  your  Review 
Committee  is  recommending  is  not  sufficient  either? 

Mr.  Monroe.  We  believe  that  the  $10  million  is  necessary  we  un- 
derstand the  budget  climate,  we  understand  the  need  to  balance 
the  budget.  We  also  feel  strongly  that  there  is  a  moral  responsibil- 
ity here,  and  that  we  would  be  nappy  to  see  this  amount  increased 
to  $10  million.  It  would  be  great  if  it  were  more,  but  $10  million 
is  a  very  reasonable  request. 

Again,  museums  have  borne  a  substantial  burden,  as  is  rightly 
the  case  and  as  it  should  be,  and  have  carried  this  out  in  good 
faith.  Tribes  now  need  money  to  travel,  to  do  the  consultation,  and 
museums  need  to  work  with  them  to  do  that. 

It  can't  be  done  effectively  with  the  amount  of  money  available, 
so  $10  million  would  be  very,  very  helpful. 

Senator  Inouye.  Ms.  Naranjo  and  you  have  both  testified  as  to 
the  problems  associated  with  the  disposition  of  unidentified  and 
unclaimed  human  remains  and  funerary  objects.  It  might  be  well 
if  I  review  for  you  very  briefly  one  of  the  reasons  why  I  got  so  deep- 
ly involved  in  this. 

When  I  became  chairman  of  the  committee,  one  of  the  first 
things  that  I  learned  was  that  in  the  custody  of  the  Smithsonian 
Institution  were  14,500  skulls  and  human  remains  of  Native  Amer- 
icans, Indians,  plus  4,000  human  remains  of  Alaska  Natives  and 
Aleuts.  Unfortunately,  most  of  them  were  not  collected  by  profes- 
sionals— archaeologists  and  such — but  most  of  them  were  collected 


23-074    96-2 


30 

by  soldiers  who  were  operating  under  the  direction  of  the  Army 
surgeon  general,  who  requested  that  skulls  be  sent  to  him  so  that 
he  could  conduct  studies  on  the  cranial  capacity  of  Native  Ameri- 
cans to  determine  their  intelligence. 

Well,  the  soldiers  got  very  enthusiastic  about  it,  and  they  began 
collecting  and  digging  up  graves  all  over  the  countryside,  and  the 
only  thing  we  know  is  that  they  came  from  the  corridor  area,  or 
they  came  from  the  Oklahoma  area.  We  have  no  association  with 
specific  tribes  or  specific  areas,  just  a  large  area. 

Now,  having  cited  that,  and  then  the  case  that  has  just  con- 
cluded in  Hawaii,  I  presume  you  would  favor  an  amendment  that 
would  authorize  a  guardianship  capacity  for  appropriate  entities  so 
that  we  could  provide  protection  for  these  remains. 

Mr.  Monroe.  The  Review  Committee  has  taken  a  number  of  ap- 
proaches, and  we  did  not  have  any  information  on  the  Hawaii  case. 
I  think  that  it  is  fair  to  state — and  Tessie,  you  could  add — that 
there  is  great  concern  about  the  issue  of  unidentified  remains.  It 
is  very  important  to  try  to  figure  out  some  mechanisms — not  over 
the  next  5  years,  but  in  a  reasonable  time — by  which  remains  can 
be  returned. 

And  I  think  it's  also  fair  to  state  that  the  issue  of  ancient  re- 
mains is  a  contentious  one. 

We  would  like  to  see — and  I  think  I  can  speak  for  the  museum 
community,  as  well — returns  of  Native  American  remains  that 
ought  to  be  returned,  returned  expeditiously.  We're  working  to 
achieve  that.  The  general  principles  you're  talking  about  Senator 
are  not  in  disagreement  witn  the  museum  community.  It's  just  that 
it's  a  difficult  issue. 

We  don't,  for  example,  wish  to  see  remains  returned  to  the  wrong 
parties.  There  are  groups  like  those  in  South  and  North  Dakota 
with  the  Sioux,  from  whom  you'll  hear  with  later,  that  have  joined 
together  to  help  facilitate  return  of  a  number  of  remains  where  it 
may  not  be  possible  to  determine  whether  they  were  precisely  Og- 
lala  Sioux  or  Brule,  but  rather  clearly  there  are  Sioux  and  they 
should  be  returned. 

I'm  confident  that  we'll  address  these  issues  working  on  them. 

Senator  Inouye.  I  asked  a  question  about  the  exemption  from 
public  disclosure  under  the  Freedom  of  Information  Act.  Do  you 
think  that  information  about  Native  American  human  remains 
should  be  kept  secret? 

Mr.  Monroe.  Well,  there  are  a  number  of  concerns  that  the  com- 
mittee has  discussed  with  respect  to  this.  Again,  we're  taken  aback, 
I  think,  by  the  rulings  in  Hawaii  a  number  of  ways. 

There  are  concerns  in  making  information  public  about  Native 
American  human  remains  because,  if  you  do  then  you're  just  basi- 
cally publicly  advertising  where  it  may  be  possible  for  pot  hunters 
and  grave  diggers  to  disturb  more  remains.  That's  clearly  a  major 
concern. 

Second,  there  is  obviously — and  as  there  should  be — a  great  deal 
of  sensitivity  about  additional  scientific  study  and  about  certain 
kinds  of  information  being  broadly  disseminated. 

The  committee  can't  respond  to  the  Hawaii  case  because  we 
didn't  know  about  it,  but  I  think  it's  fair  to  say  that  it's  a  concern 
to  us  that  information  about  the  location  of  gravesites  would  be 


31 

available  to  anyone  who  wants  it.  It  certainly  goes  against  some  of 
the  basic  tenets  of  this  law. 

Senator  Inouye.  As  to  your  other  concern  of  including  all  Indian 
tribes,  whether  they  are  recognized  by  BIA  or  not,  I  can  assure  you 
we  concur  with  that,  because  we  know  that  most  of  the  tribes  that 
have  not  received  Federal  recognition  are  found  in  California  at 
this  time,  and  these  tribes  were  recognized  at  one  time.  They  en- 
tered into  treaties  with  the  United  States,  but  we  decided  to  dis- 
regard these  treaties  and  therefore  made  them  unrecognized,  so  we 
would  try  to  correct  history,  if  we  can. 

Mr.  Monroe.  Thank  you  very  much.  We'd  appreciate  it.  I  know 
the  Review  Committee  would  appreciate  that,  and  certainly  those 
unrecognized  tribes  with  whom  we've  dealt  would  deeply  appreciate 
it. 

Senator  Inouye.  Because  I  think  that  we  have  the  authority, 
Congress  does  have  the  authority,  and  that  we  should  clearly  enact 
a  statute  to  provide  authority  for  repatriation  of  all  human  re- 
mains. 

Once  again,  I  would  like  to  say  that,  as  Senator  Dorgan  and  Sen- 
ator Campbell  have  indicated,  they  have  had  200  years  to  study 
and  make  scientific  inquiry  about  these  skeletal  remains.  Maybe 
the  time  has  come.  I  do  not  think  they  need  200  more  years  to  do 
that. 

Mr.  Monroe,  you  also  somehow  expressed  that  you  were  not  too 
happy  with  the  publication  of  the  final  regulations  in  the  "Federal 
Register."  Are  you  supportive  or  critical?  I  could  not  quite  get  it. 

Mr.  Monroe.  I'll  be  clear.  The  Review  Committee  has  been  con- 
cerned at  the  extended  time  it  has  taken  to  publish  regulations. 

We  know  that  by  not  having  regulations  published  in  5  years,  al- 
most to  the  day,  after  this  act  was  passed,  it  has  caused  confusion, 
unnecessary  expense,  and  it  has  made  it  more  difficult,  on  the  part 
of  both  tribes,  museums,  and  universities  and  Federal  agencies. 

We  would  have  been  happier  to  have  seen  regulation  passed  ex- 
peditiously. We  think,  just  to  wrap  it  up,  that  there  ought  to  be 
ample  opportunity,  and  we've  done  that  within  the  resources  avail- 
able to  the  committee  and  to  the  particular  department  under 
Frank  McManamon,  to  make  it  possible  for  as  many  people  as  we 
can,  representing  everyone  affected,  to  participate  in  and  provide 
input  to  regulations,  on  the  one  hand. 

On  the  other  hand,  we  think  that  it  is  important  and  reasonable 
that  to  get  this  work  done  in  a  more  timely  manner.  That  was  my 
point. 

Senator  Inouye.  Before  I  call  upon  Senator  Campbell  for  ques- 
tions, I  would  like  to  thank  all  of  you  on  the  committee  for  the 
many  hours  and  many  days  of  time  you  have  spent,  and  for  the 
contributions  you  have  made  toward  implementation  of  this  act. 

I  can  imagine  the  frustration  that  you  have  experienced,  but  I 
hope  that  among  the  frustrations  is  not  the  feeling  that  you  have 
no  support  here.  I  can  assure  you  that  you  have  a  lot  of  support 
here.  We  are  just  waiting  for  our  marching  orders.  That  is  all.  And 
when  we  get  them  we  will  proceed. 

Once  again,  I  would  like  to  request  from  you  your  views  on  this 
recent  Federal  district  court  of  Hawaii  decision,  because  it  will  im- 
pact upon  your  work,  and  if  you  believe  that  some  of  these  provi- 


32 

sions  should  be  clarified  or  cured  by  legislation,  if  you  would  tell 
us  so  we'd  be  very  happy  to  act  upon  it. 

Senator  Campbell. 

Senator  Campbell.  Thank  you,  Mr.  Chairman. 

Mr.  Monroe,  are  you  a  veteran,  by  any  chance? 

Mr.  Monroe.  No. 

Senator  Campbell.  Well,  Senator  Inouye,  as  you  know,  is  a  vet- 
eran, as  I  am.  Senator  Inouye  is  a  very  highly-decorated  World 
War  II  veteran,  and  I  was  in  the  one  after  that  in  Korea. 

Let  me  just  put  this  in  a  context  maybe  that  any  veteran  in  this 
room  could  understand. 

If  you  combine  all  of  the  people  who  are  not  accounted  for,  Amer- 
icans of  World  War  II,  of  Korea,  and  Vietnam,  there  are  about 
50,000.  There  are  about  40,000  from  World  War  II,  roughly  8,000 
from  Korean,  and  about  2,000  from  Vietnam. 

Although  the  World  War  II  veterans  and  the  Korean  veterans 
haven't  been  quite  as  vocal,  I  know  that  if  you  follow  the  news- 
papers you  know  that  the  Vietnam  veterans  have  been  very  vocal 
and  the  families  have  been  very  vocal  across  this  Nation  about  re- 
turning the  remains  of  those  2,000  missing.  So  we  have  a  total  of 
about  50,000. 

According  to  CBO,  the  number  of  skeletal  remains  that  haven't 
been  returned  to  Indians  may  number  200,000,  maybe  four  times 
the  amount  of  all  American  missing  in  all  the  wars  since  World 
War  II. 

I  want  to  just  put  that  in  a  sort  of  balance  so  you  may  be  able 
to  understand  the  magnitude  of  what  it  means  to  American  Indi- 
ans. Certainly  those  remains  are  just  as  important  to  them  as  any 
American's  missing  remains  are  of  their  loved  ones  in  any  of  those 
wars. 

You  talked  about  the  Native  American  experience.  It  is  a  very 
proud,  dignified,  courageous  experience  in  the  history  of  this  coun- 
try. But  I  often  think  sometimes  if  we  could  have  more  department 
heads  go  out  and  live  that  Native  American  experience,  on-reserva- 
tion  experience,  they'd  understand,  I  think,  better  what  Indian  peo- 
ple feel  they  are  up  against,  because  it  is  also  an  experience  of  pov- 
erty, of  sometimes  as  much  as  70  or  80  percent  unemployment,  of 
sickness,  of  lack  of  sanitation  or  good  housing,  of  living  on  commod- 
ities, of  all  kinds  of  social  problems. 

If  you  magnify  by  five  every  problem  that  America  has,  magnify 
it  by  five  and  you  have  part  of  the  Native  American  experience  on 
a  daily  basis. 

One  of  the  few  things  they  really  hang  on  to  is  traditions,  cul- 
ture, and  the  knowledge  and  belief  that  the  spirit  of  the  old  ones, 
the  spirit  of  their  ancestors  are  still  with  them  to  help  guide  them 
through  troubled  times. 

I  don't  know  of  any  culture  that  puts  more  emphasis  on  that, 
more  belief  that  they're  being  guided  and  helped  by  the  ancient 
ones  than  American  Indians. 

It  seems  to  be  a  cultural  experience  for  most  Americans,  when 
your  parents  die  or  your  grandparents  die,  you  go  out  there  once 
a  year  and  you  put  flowers  on  a  grave  and  you  remember  them 
once  a  week  or  once  a  month  or  something  in  your  prayers,  and  lit- 
tle by  little  they  sort  of  fade  out  of  your  memory,  but  that's  not  the 


33 

Native  American  experience.  They  think  about  it  all  the  time.  They 
just  absolutely  think  about  it  all  the  time. 

People  that  we  would  call  "traditionals,"  they  include  it  in  their 
prayers  daily.  Daily  in  the  morning,  before  they  do  anything  else, 
they  include  it  in  their  prayers. 

But  I  wanted  to  just  point  that  out  that  sometimes  when  we  talk 
about  other  experiences  in  America  we're  on  different  wavelengths. 
We  try  to  apply  the  logic  of  living  in  a  certain  kind  of  a  lifestyle 
to  what  the  Native  American  experience  might  be,  based  on  a  cou- 
ple of  friends  we've  seen  or  something  we  read  or  a  movie  we  saw 
or  something  of  that  nature. 

But  it  is  really  a  driving  force,  this  concern  about  elders  and  an- 
cient ones  and  the  people  that  they  believe  the  remains  should  go 
back  to  the  earth  or  be  returned. 

But  I  wanted  to  point  that  out  to  you,  just  to  sort  of  put  it  in 
kind  of  a  context  about  all  of  the  rhetoric,  all  the  debate,  all  the 
dialogue,  all  the  anger  we're  getting  on  the  missing  servicemen  and 
how  it  pales  by  virtual  numbers  with  what  Indians  go  through. 

Mr.  Monroe.  Senator,  I  appreciate  that  point,  and  if  you  will 
note  in  my  written  testimony,  I  made  precisely  the  point  you  just 
made  with  respect  to  Vietnam  veterans. 

I'd  just  add  one  other  thing,  I  also  pointed  out  in  my  written  tes- 
timony: This  country  has  a  moral  responsibility  to  address  this 
issue  and  that  this  small  amount  of  money,  while  it  has  been  very 
deeply  appreciated,  that  has  been  invested  so  far  on  the  part  of  the 
Federal  Government  needs  to  be  increased  for  the  very  reasons 
that  you  just  pointed  out. 

Senator  Campbell.  And  I  appreciate  the  fact.  I  know  there  has 
been  some  progress  made,  probably  more  in  the  last  8  or  10  years, 
or  at  least  since  the  Smithsonian  bill  passed,  and  probably  the  last 
three  or  four  decades  before  that,  so  I  don't  mean  to  imply  that 
nothing's  being  done. 

Mr.  Monroe.  I  understand. 

Senator  Campbell.  I  just  get  frustrated  that  we're  not  moving  as 
fast  as  we  ought  to,  but  thank  you. 

Mr.  Monroe.  I  understand  your  point. 

Senator  Campbell.  Thank  you,  Mr.  Chairman. 

Senator  Inouye.  Thank  you  very  much. 

I  would  like  to  thank  the  panel:  Ms.  Stevenson,  Ms.  Naranjo,  Mr. 
Monroe,  thank  you  very  much. 

Mr.  Monroe.  Thank  you. 

Senator  Inouye.  Before  calling  upon  the  last  panel,  I  would  like 
to  advise  all  of  you  that  this  committee  has  requested  information 
from  the  Department  of  Justice  on  the  status  of  implementation  of 
section  4  of  the  act,  which  provides  for  criminal  penalties  for  viola- 
tions of  the  act  and  for  illegal  trafficking  of  sacred  objects.  That  has 
been  a  major  problem  in  this  area,  and  I  can  assure  you  that  the 
written  response  we  will  receive  from  the  department  will  be  made 
part  of  the  record  so  that  all  of  us  will  be  able  to  study  that. 

Now  may  I  call  upon  the  next  panel:  The  Lieutenant  Governor 
of  the  Gila  River  Indian  Community,  Cecil  Antone;  the  chairwoman 
of  the  Pawnee  Tribe  of  Oklahoma,  Elizabeth  Blackowl,  accom- 
panied by  the  chief  attorney  of  the  Native  American  Rights  Fund, 
Walter  Echohawk;  the  chairman  of  the  Standing  Rock  Sioux  Tribe 


34 

of  North  Dakota,  Jesse  Taken  Alive,  who  is  accompanied  by  the 
NAGPRA  representative  of  Standing  Rock,  Tim  Mentz;  and  the 
chairman  of  the  American  Association  of  Museums  and  president 
and  chief  executive  officer  of  the  Milwaukee  Public  Museum,  Wil- 
liam Moynihan. 
May  I  now  call  upon  Governor  Antone. 

STATEMENT  OF  CECIL  F.  ANTONE,  LIEUTENANT  GOVERNOR, 
GILA  RIVER  INDIAN  COMMUNITY,  SACATON,  AZ 

Mr.  Antone.  Thank  you,  Mr.  Chairman. 

It's  good  to  be  here  again.  We  testified  before  on  legislation  that 
was  approved  in  1990. 

At  the  outset,  I  would  like  to  say  basically  that,  in  our  situation 
with  NAGPRA  and  the  implementation,  we  have  not  done  a  lot  in 
this  particular  legislation  because,  as  you  stated  before,  there  are 
a  lot  of  problems  as  far  as  the  regulations,  and  the  previous  speak- 
ers have  spoken  to  that,  and  the  amount  of  resources. 

What  I  want  to  at  least  say  today  is  that,  regarding  my  testi- 
mony, is  our  experience  in  Arizona,  as  far  as  our  four  tribes  and 
the  efforts  we've  done  with  Arizona  law,  because  I  think  it  has  a 
lot  to  say  because  Arizona  law  was  approved  the  same  time 
NAGPRA  was  approved,  in  December  1990. 

I  know  that  Senator  McCain  had  a  lot  of  inquiries  about  the  law 
in  Arizona,  because  at  the  time  the  committee  was  looking  at  the 
passage  of  NAGPRA. 

Basically,  the  inquiries  that  we've  received  over  the  last  4  years 
has  been  in  excess  of  150  letters,  and  we  have  responded  to  those 
letters  indicating  our  interest  in  trying  to  at  least  make  visitations 
to  these  locations. 

I  know  in  my  testimony  I  did  not  make  mention,  but  we  did  re- 
ceive part  of  the  NAGPRA  grants,  and  that  was  between  Gila  River 
and  Salt  River,  and  so  part  of  those  resources  are  going  to  be  to- 
ward visiting  these  institutions — not  all  of  them,  but  maybe  one  or 
two  that  has  the  highest  concentration  of  our  people. 

The  other  thing  is  that  we,  as — often  people  in  our  location  with 
the  other  four  tribes  have  had  a  lot  to  do  as  far  as  putting  the 
State  law  into  place,  because  we  felt  at  that  time  that  there  had 
to  be  at  least  some  cohesiveness  among  tribes,  particularly  if  they 
are  all  related. 

When  I  testified  back  in  1990,  I  believe,  before  NAGPRA  was  ap- 
proved, we  had  put  together  a  repatriation  policy  and  it's  still  in 
place,  and  we  have  done  a  lot  as  far  as  implementing  that  policy, 
both  to  Federal  agencies  and  to  State  law. 

I  guess  our  experience,  at  least  with  NAGPRA,  has  been  very 
limited,  as  I  stated,  and  it  has  only  been  with  programmatic  agree- 
ments we've  done  recently  with  the  Air  Force,  and  soon  to  do  with 
some  private  entities,  as  well,  because  of  the  location  of  the  mining 
facility  close  to  our  reservation. 

In  essence,  we  have,  as  far  as  the  State  laws,  we've  repatriated 
over  3,000  human  remains  of  our  people  and  funerary  objects. 

The  biggest  difficulty,  as  my  testimony  states,  is  the  lack  of  re- 
sources, and  so  what  we're  doing  is  developing  partnerships  with 
the  Federal  agency  to  develop  a  repository  there  at  Gila  River  to 
house  all  the  Dig  irrigation  project  in  Arizona  called  "the  central 


35 

Arizona  project,"  and  we've  made  an  agreement  with  the  Bureau 
of  Reclamation  to  house  and  develop  or  construct  a  repository  in 
our  community.  And  we  will  also  be  using  our  own  resources  to 
supplement  that,  because  we  obviously  want  to  repatriate  a  lot  of 
the  cultural  patrimony  items  from  other  institutions  in  the  country 
dealing  with  NAGPRA  and  house  these  in  our  community. 

For  instance,  recently,  this  past  July,  I  visited  the  National  Mu- 
seum of  the  American  Indian  and  viewed  two  of  the  only  four  in 
existence  Pima  blankets  made  of  100  percent  cotton  in  that  institu- 
tion, and  we  want  to  at  least  try  to  get  some  of  those  blankets  back 
to  Gila  River  in  review  for  our  people,  for  our  younger  people. 

But,  in  essence,  that's  basically  my  testimony.  I  appreciate  the 
effort  that  you  have  done,  Senator,  and  Senator  McCain,  and  all 
the  committee  improving  NAGPRA,  even  though  it  is  a  start  and 
there  has  been  some  delay.  Five  years  has  been  a  long  time.  I  rec- 
ognize the  bureaucracy  that  everyone  has  to  go  through,  but  I 
didn't  really  want  to  say  anything  against  the  National  Park  Serv- 
ice or  the  Review  Committee.  I  think  they've  done  a  job  required 
of  them,  and  with  a  lack  of  resources,  and  I  applaud  the  committee 
for  at  least  looking  into  providing  additional  moneys  to  Indian 
tribes  to  fully  implement  this  law. 
Thank  you. 

[Prepared  statement  of  Mr.  Antone  appears  in  appendix.] 
Senator  Inouye.  I  thank  you  very  much,  Governor. 
You  mentioned  in  your  testimony  that  an  agreement  was  reached 

between  your  tribe  and  the  Bureau  of  Reclamation 

Mr.  Antone.  Yes. 

Senator  Inouye.  [continuing].  To  construct  a  repository  to  house 
archaeological  material.  How  did  you  reach  this  agreement? 

Mr.  Antone.  Well,  initially  this  was  one  of  my  ultimate  goals 
when  I  got  into  office,  to  develop  some  type  of  museum  and  reposi- 
tory for  our  tribe.  Right  now,  as  you  may  or  may  not  be  aware,  we 
do  have  an  agreement  with  the  Bureau  of  Reclamation  to  receive 
water,  one  of  the  largest  allocations  under  that  law,  172,000  acre 
feet. 

In  part  of  the  process  of  that,  they  are  going  to  be  doing  archae- 
ological work  in  the  community  developing  for  the  distribution  ca- 
nals, and  so  forth. 

Obviously,  they  are  going  to  have  to  go  through  the  NEPA  proc- 
ess, and  one  of  the  things  they  are  going  to  do  is  archaeological 
work,  and  so,  rather  than  house  all  the  material  from  Gila  River 
and  put  them  into  Tucson,  where  the  Western  Archaeological  Advi- 
sory Conservacy  offices  or  institutions  where  they  are  housed  now, 
we  thought,  "Well,  why  don't  we  build  it  in  Gila  River  and  develop 
a  partnership  with  Reclamation?" 

So  we  instituted  that  about  IV2  years  ago,  and  so  tentatively  we 
have  an  agreement  with  that. 

Also,  we're  one  of  the  self-governance  tribes,  and  we  have  in- 
cluded that  in  the  recent  AFA  agreement  with  the  Bureau  of  Rec- 
lamation. 

Senator  Inouye.  It  will  be  just  to  house  archaeological  remains 
of  Gila  River? 

Mr.  Antone.  No;  it  will  be  all  CAP  since  day  one  when  they 
started  from  the  Colorado  River  all  the  way  to  Tucson. 


36 

Senator  Inouye.  You  mentioned  that  the  lack  of  final  regulations 
affected  your  repatriation  efforts.  How  did  it  affect  it?  Slowed  it 
down? 

Mr.  Antone.  It  slowed  it  down  to  the  extent  that,  rather  than 
dealing  with  the  regulations,  since  they  weren't  there,  we  just  de- 
veloped agreements  with  Federal  agencies.  In  that  one  case  I  men- 
tioned about  the  Williams  Air  Force  Base,  a  huge  archaeological 
site,  we  developed  an  agreement  based  on  some  of  the  provisions 
in  NAGPRA,  dealing  at  least  with  consultation  when  they  start 
working  on  their  base,  and  as  far  as  development,  that  they  need 
to  consult  the  tribe. 

I'd  be  more  than  happy  to  provide  you  a  copy  of  that  pro- 
grammatic agreement.  In  this  case,  it  worked  out  very  well. 

Senator  Inouye.  You  worked  with  the  Keepers  of  the  Treasures; 
is  that  correct? 

Mr.  Antone.  Not  today,  as  of  today.  I  was  the  first  board  mem- 
ber, I  was  the  chairman  of  the  board  when  it  first  came  into  exist- 
ence. 

Senator  Inouye.  But  in  your  work  with  the  Keepers,  could  you 
describe  any  barriers  or  impediments  in  the  repatriation  process 
from  that  standpoint? 

Mr.  Antone.  The  essence  of  Keepers  is  to  promote  cultural 
awareness  and  language  and  retention  of  language  and  cultural  re- 
tention for  Indian  people.  In  my  experience  with  Keepers,  there 
were  several  things  going  on. 

As  you  know,  in  1992  also  the  amendments  to  the  National  His- 
toric Preservation  Act  were  approved,  and  also  the  NAGPRA  was 
approved  in  1990,  and  really  I  did  not  foresee  any  problems.  I 
think  the  Agency  and  Park  Service  were  trying  to  deal  with  the  is- 
sues but,  as  stated  before,  the  lack  of  resources. 

I  guess  I  have  to  say,  as  far  as  regulations,  the  1992  amend- 
ments of  the  National  Historic  Preservation  Act,  even  though  they 
have  some  draft  agreements  right  now  or  regulations,  they  are  a 
little  bit  better,  quicker  done — I  guess  that's  what  I'm  saying — than 
the  NAGPRA  regulations. 

The  Park  Service  has  gone  out  and  had  several  meetings  with 
the  tribes  on  the  National  Historic  Preservation  Act,  and  what  I'm 
meaning  is  that  that  particular  legislation  which  was  approved  in 
1992  has  been  addressed  a  little  Dit  more  considerably  as  far  as 
NAGPRA  regulations. 

Senator  Inouye.  I  will  be  asking  all  of  the  witnesses,  as  I  did  in 
the  first  panel,  to  submit  to  us  in  writing  your  views  on  the  recent 
Hawaii  case,  which  would  have  an  impact  upon  your  efforts. 

For  example,  I'd  like  to  know  what  you  think  about  exempting 
information  on  Native  American  human  remains  from  public  disclo- 
sure. I'd  like  to  know  what  your  position  would  be  on  the  appoint- 
ment of  guardians  so  that  all  of  these  human  remains  might  be 
protected,  and  whether  this  act  should  be  amended  to  make  certain 
that  Native  American  human  remains  have  a  legal  standing  in 
court,  because  under  the  ruling  of  the  court,  it  does  not  have  legal 
standing,  and  this  would  cause,  I  would  say,  major  concern  in  this 
community  because  of  the  uncertainty  involved. 

So  I  will  be  asking  all  of  you  to,  if  you  will,  share  with  us  your 
thoughts  on  this. 


37 

I'd  like  to  now  call  upon 

Mr.  Antone.  Senator? 

Senator  Inouye.  Yes. 

Mr.  Antone.  Could  I  just  add  one  comment  to  what  you  men- 
tioned earlier  about  unidentified  human  remains? 

Senator  Inouye.  Yes. 

Mr.  Antone.  I  guess  in  our  situation,  Arizona  law,  in  that  law 
basically  it  says  that  the  closest  tribe  where  the  human  remains 
were  uncovered,  that  tribe  would  be  the  tribe  to  repatriate  those 
human  remains,  if  they  desire. 

There  have  been  cases  in  Arizona  where  that  has  occurred,  be- 
cause ultimately  the  purpose  of  repatriation  is  to  bring  back  the 
ancestors  and  rebury  them,  no  matter  where  they  are  at.  Even 
though  they  are  not  identified,  they  are  human  beings.  They  were 
human  beings. 

And  so  in  our  situation  we've  always,  even  though  they  were  un- 
identified and  we  didn't  know  what  tribe  they  came  from,  we  took 
them  in  and  reburied  them  because  they  deserved  that. 

Thank  you. 

Senator  Inouye.  Thank  you  very  much. 

May  I  now  call  upon  the  chairwoman  of  the  Pawnee  Tribe,  Eliza- 
beth Blackowl. 

STATEMENT  OF  ELIZABETH  BLACKOWL,  CHAIRWOMAN, 
PAWNEE  TRLBE  OF  OKLAHOMA,  PAWNEE,  OK,  ACCOMPANIED 
BY  ROBERT  PEREGOY,  ESQUIRE,  ATTORNEY  AT  LAW,  NATIVE 
AMERICAN  RIGHTS  FUND,  WASHINGTON,  DC 

Mrs.  Blackowl.  Good  morning,  Vice  Chairman  Inouye  and  mem- 
bers of  the  committee.  I  am  Elizabeth  Blackowl,  president  of  the 
Pawnee  Tribe  of  Oklahoma.  Thank  you  for  the  opportunity  to  tes- 
tify on  behalf  of  the  Pawnee  Tribe  about  our  efforts  to  implement 
Federal  repatriation  laws. 

I  will  summarize  my  written  testimony. 

Mr.  Vice  Chairman,  the  Pawnee  Tribe  commends  you  and  Chair- 
man McCain  and  other  members  of  the  committee  for  your  dedi- 
cated leadership  in  passing  NAGPRA.  It  is  difficult  to  express  in 
words  our  heartfelt  sentiments  involved  in  repatriating  our  beloved 
ancestors. 

For  example,  we  were  deeply  moved  by  Senator  McCain's  pres- 
ence at  the  Fort  McNair  ceremonies  held  last  June.  We  were  hon- 
ored to  have  him  with  us  when  the  remains  of  six  Pawnee  scouts 
and  U.S.  Army  veterans  were  repatriated  from  the  Museum  of  Nat- 
ural History.  Our  tribal  representatives  were  very  touched  by  the 
good  words  that  he  shared  with  us  on  that  day. 

With  you,  Senator  Inouye,  we  appreciate  your  continued  leader- 
ship and  support  in  our  repatriation  efforts,  and  we  appreciate 
your  sponsorship  of  this  law. 

I  am  here  to  testify  that  NAGPRA  can  work.  Since  1989,  our 
tribe  has  repatriated  and  reburied  1,100  relatives  from  Federal  and 
State  museums.  This  was  accomplished  in  four  ceremonies,  begin- 
ning in  1990.  Three  of  these  burials  occurred  under  Nebraska  and 
Kansas  repatriation  laws.  The  fourth  reburial  was  done  in  1995 
under  Federal  law,  NAGPRA,  and  the  National  Museum  of  the 


38 

American  Indian  Act.  We  reburied  400  ancestors  and  their  burial 
objects. 

These  dead  were  repatriated  from  four  State  and  Federal  muse- 
ums. They  were  reburied  with  tribal  rights  and  with  military  honor 
for  the  U.S.  Army  veterans. 

The  Pawnee  Tribe  currently  has  a  repatriation  claim  pending 
with  the  Museum  of  Natural  History.  This  claim  was  initiated  in 
1988.  A  part  of  this  7-year  claim  is  still  pending  at  the  Smithso- 
nian. It  is  part  of  an  appeal  recently  decided  by  the  Native  Amer- 
ican Review  Committee  of  the  Smithsonian  Institution.  This  was 
the  first  appeal  decided  by  that  committee,  and  we  commend  the 
Review  Committee  for  their  fair  and  timely  way  the  handled  our 
appeal. 

We  started  to  see  results  under  NAGPRA,  but  improvement  is 
really  needed.  Our  experience  tells  us  that  there  are  three  specific 
issues  that  must  be  addressed. 

First,  Federal  repatriation  budgets  are  drastically  under-funded. 
The  1995  repatriation  cost  $80,000,  although  we  did  receive  a 
$7,500  grant  from  the  Forest  Service.  In  fiscal  year  1994  and  1995, 
the  National  Park  Service  received  337  proposals  from  tribes  and 
museums,  totaling  $30  million,  but  was  only  able  to  fund  83  grants 
for  $4.3  million.  This  is  a  $25  million  gap.  The  current  level  of  $2.3 
million  is  clearly  inadequate. 

Congress  needs  to  appropriate  at  least  $10  million  annually  to 
implement  NAGPRA  in  a  meaningful  way.  Let  us  not  forget  that 
we  are  talking  about  the  reburial  of  our  ancestors. 

Second,  our  repatriation  claim  at  the  Museum  of  Natural  History 
was  delayed  and  burdened  with  unnecessary  Government  studies. 
These  studies  were  unrelated  to  the  Pawnee  claims.  This  resulted 
in  excessive  and  unnecessary  cost  to  the  tribe  and  to  the  Federal 
Government. 

To  remedy  this  problem,  we  recommend  that  the  committee  di- 
rect the  Smithsonian  and  other  affected  museums  to:  No.  1,  refrain 
from  excessive  delays  in  corresponding  with  Indian  tribes;  No.  2, 
refrain  from  conducting  unnecessarily  and  unduly  expensive  new 
studies,  especially  under  the  guise  of  documenting  or  inventorying 
the  remains  at  issue;  and,  No.  3,  to  consult  with  Indian  tribes  to 
make  the  process  less  technical  and  expensive  and  to  streamline 
claims. 

Third,  the  failure  of  the  Secretary  of  the  Interior  to  finalize 
NAGPRA  regulations  until  this  week  has  caused  problems.  This  in- 
cluded delays  and  increased  cost  to  the  Pawnee  Tribe  in  our  claim 
at  the  Nebraska  State  Historical  Society.  Because  these  overdue 
regulations  were  just  recently  published,  the  hearing  record  should 
be  kept  open  so  tribes  can  comment  on  these  regulations. 

Mr.  Chairman,  this  concludes  my  testimony.  On  behalf  of  the 
Pawnee  people,  we  thank  you  and  your  committee  for  your  leader- 
ship in  this  important  human  rights  issue,  and  the  Pawnee  Tribe 
is  willing  to  assist  the  committee  in  any  way  possible. 

Thank  you. 

[Prepared  statement  of  Ms.  Blackowl  appears  in  appendix.] 

Senator  Inouye.  Thank  you  very  much. 

I  would  like  to  first  note  that  Walter  Echohawk  is  not  here  and 
that  Mr.  Robert  Peregoy  is  with  you. 


39 

I  would  like  to  also  congratulate  you  on  the  successful  repatri- 
ation of  your  Pawnee  scouts.  Could  you  tell  us  how  long  that  proc- 
ess took? 

Mr.  Blackowl.  I'll  have  to  refer  that  question  to  Mr.  Peregoy. 

Mr.  Peregoy.  The  repatriation  process  with  the  National  Mu- 
seum of  Natural  History  took  approximately  3  years,  as  far  as  I 
can  tell,  Senator  Inouye,  and  was  quite  costly.  It  cost  the  Pawnee 
Tribe  and  the  Native  American  Rights  Fund  about  $51,000. 

Senator  Inouye.  Did  vou  say  $51,000? 

Mr.  Peregoy.  Yes;  $51,000.  That  includes  other  repatriations 
that  were  done  with  the  Federal  Government  under  NAGPRA,  be- 
cause problems  with  excessive  delay,  as  well  as  what  we  consider 
to  be  very  unnecessary  studies  that  were  conducted  by  the  Museum 
of  Natural  History  were  really  unrelated  to  the  Pawnee  claims  at 
issue.  That's  one  of  the  serious  areas  of  attention  that  we  feel  is 
required,  that  the  museums  are  conducting  studies  that  aren't 
called  for  under  the  act,  under  the  guise  of  inventorying  and  docu- 
menting remains  where  the  act,  on  its  face,  states  that  the  cultural 
affiliation  is  to  be  determined  based  upon  existing  information. 

Senator  Inouye.  At  the  beginning  of  the  process,  was  there  any 
question  as  to  the  identification  of  the  four  Pawnee  scouts? 

Mr.  Peregoy.  I  am  not  aware  of  the  specifics  if  there  was  an 
issue  in  terms  of  the  identification  of  those  six  Pawnee  scouts,  but 
with  the  one  repatriation  that  was  handled  this  year  under 
NAGPRA  with  the  Federal  Government,  there  was  a  question  at 
the  beginning. 

The  Museum  of  Natural  History  had  responded  initially  to  the 
Pawnee's  claim  that  they  only  had  the  remains  of  two  Pawnees, 
and  at  that  time  we  knew  that  there  was  a  substantial  more  num- 
ber than  that,  and  so  Native  American  Rights  Fund,  in  conjunction 
with  the  Pawnee  Tribe,  found  it  necessary  to  hire  additional  ex- 
perts and  historians  to  document  our  claim  at  that  time. 

We  documented  that  there  were  80  Pawnees  held  by  that  mu- 
seum, and  had  we  taken  the  museum's  number  up  front,  we  would 
have  left  78  of  the  tribal  ancestors  of  the  Pawnee  people  on  the 
shelves  in  those  warehouses,  and  it  cost  us  approximately,  as  I 
said,  $50,000  to  go  through  that  process  to  do  this  kind  of  docu- 
mentation. 

Senator  Inouye.  So  finally  how  many  remains  have  you  re- 
ceived? 

Mr.  Peregoy.  Under  NAGPRA,  400  from  State  and  Federal  mu- 
seums, and  a  total — the  Pawnee  Tribe,  over  the  course  of  the  last 
6  years,  has  repatriated  1,100  ancestors  and  reburied  them. 

I  think  it  is  very  significant  to  note,  Senator,  that  the  present- 
day  Pawnee  Tribe  consists  of  2,500  people,  and  1,100  of  that  2,500 
is  about  44  or  45  percent,  so  that  is  a  very  significant  number. 
That's  almost  one-half  of  the  living  Pawnee  people  today  who  have 
been  repatriated  from  these  museum  shelves  and  reburied,  and 
that  is  a  very  significant  number. 

If  you  extrapolated  that  to  the  United  States  population,  that 
would  be  approximately  120  million  people  in  museum  shelves.  It 
is  very  significant  to  the  Pawnee  society,  and  that's  one  thing  that, 
frankly,  irks  NARF  and  the  Pawnee  Tribe,  and  I  think  that  you 


40 

and  Senator  Campbell  were  very  eloquent  about  it  this  morning, 
that  there  is  just  not  an  appreciation. 

When  we're  talking  about  appropriations  here,  that  is  a  key  issue 
that  the  majority  of  the  Members  of  Congress  do  not  understand 
that  we  are  talking  about  significant  spiritual  matters,  and  that 
basically  that  this  Nation  goes  to  great  extent  and  lengths  to  pro- 
tect and  repatriate  its  dead,  but  when  we're  talking  in  this  instance 
about  the  first  Americans  putting  their  ancestors  and  spirits  to 
rest,  there  just  does  not  seem  to  be  that  kind  of  priority  on  it. 

I  think  it  needs  to  be  elevated  to  the  human  level,  because  in  the 
case  of  the  Pawnee  Tribe,  throughout  this  entire  process  that  was 
very  acrimonious,  with  different  State  agencies  involved,  it  is  very, 
very  true  that  the  living  Pawnee  people  felt  collectively  a  tribal 
spiritual  sickness  because  of  the  mistreatment  of  their  dead,  and 
when  the  people  were  finally  laid  to  rest,  there  was  a  great  spir- 
itual healing  among  those  people. 

You  all  identified  the  numbers  today  of  200,000  remains  out 
there.  That  kind  of  spiritual  sickness  and  pain  continues  to  be  in- 
flicted and  plagued  upon  the  Indian  people  of  this  country,  and 
Congress  should  certainly  see  fit  to  look,  when  we're  looking  at  tril- 
lion dollar  budgets — yes,  we're  in  a  budget-cutting  mode,  but  when 
we're  talking  about  $10  million  annually — and  that  is  basically  a 
conservative  number — that  Congress  should  see  fit  to  prioritize  this 
right  now  and  say, 

Look,  it's  finally  time  to  let  these  people  be  put  to  rest  and  let  the  spirits  be  rest- 
ful and  not  wandering  around  aimlessly  and  to  heal  up  those  living  relatives  of  the 
people  that  are  here  today  and  to  put  the  money  up  and  finally  do  it  and  get  it  over 
with. 

Senator  Inouye.  In  your  estimation,  how  many  more  identifiable 
Pawnees  are  still  on  museum  shelves? 

Mr.  Peregoy.  That's  a  difficult  question  to  answer  at  this  time. 
We  do  know  for  a  fact  that  there  are  probably  between  100  and  200 
remaining  in  Nebraska  museums  that  we  have  not  been  able  to — 
we  don't  nave  the  money,  haven't  had  the  money  to  come  up  to 
identify  them,  but  based  upon  information  provided  by  Nebraska 
museums,  they  are  probably,  we  think,  another  couple  hundred. 

Senator  Inouye.  I  thank  you  very  much. 

May  I  now  call  upon  the  chairman  of  the  Standing  Rock  Sioux 
Tribe,  the  Jesse  Taken  Alive,  accompanied  by  Tim  Mentz. 

STATEMENT  OF  JESSE  TAKEN  ALIVE,  CHAIRMAN,  STANDING 
ROCK  SIOUX  TRIBE,  FORT  YATES,  ND,  ACCOMPANIED  BY  TIM 
MENTZ,  NAGPRA  REPRESENTATIVE,  STANDING  ROCK  SIOUX 
TRBBE 

Mr.  Taken  Alive.  Thank  you  very  much,  Mr.  Inouye. 

[Remarks  in  Native  tongue.] 

Mr.  Taken  Alive.  I  want  to  begin  by  saying  thank  you,  as  well, 
to  those  individuals  who  have  actually  repatriated,  who  have  actu- 
ally reburied,  who  have  stood  there  in  the  cold  winter  winds  of 
North  and  South  Dakota  and  reburied  our  ancestors.  I  want  to 
publicly  thank  them  for  the  record  for  their  tears  and  pain  that 
they  endured  for  us  so  we  can  be  here  today  and  petition  for  more 
enhancement  of  this  process,  because  it  is  one  that  is  painful  and 
one  that  is  causing  a  lot  of  harm  to  our  people. 


41 

Senator  you  have  asked  everybody  since  I've  been  in  the  room  for 
their  input  and  their  comments  on  important  and  sacred  issue  that 
you  began  with  your  comments  this  morning,  something  that  hap- 
pened to  your  people  in  Hawaii.  I  will  offer  this  for  the  time  being, 
and  we  will  followup  with  more  as  we  discuss  it  at  home. 

I  think  the  question  needs  to  be  asked  of  those  people  who  took 
these  artifacts,  those  people  who  were  involved  in  this  issue  for  you 
in  your  home  country  in  Hawaii.  Were  they  stolen?  If  they  were 
stolen,  why  were  they  stolen?  What  was  the  purpose  of  stealing 
from  us? 

We  also  need  to  share  with  them  that  the  guardianship  capacity 
isn't  us  guarding  the  remains.  It's  not  us  guarding  artifacts.  It's  the 
spirit  of  those  artifacts,  it's  the  spirit  of  those  remains  that  guard 
us.  That  is  our  interpretation  of  guardianship  capacity.  We're  not 
guarding  them,  they're  guarding  us.  They're  with  us. 

As  indigenous  people  it  is  in  our  heart  and  our  blood  to  believe, 
not  to  know,  not  to  contemplate,  not  to  rationalize,  but  to  believe 
that  they  are  here  and  guarding  us,  because  if  we  look  at  history 
as  indigenous  people,  with  all  these  suppressions,  with  all  the  gen- 
ocidal  acts,  with  all  the  acts  of  eradication  aimed  at  indigenous 
people,  we  wouldn't  be  here  today. 

So  we  know  for  a  fact  and  we  can  humbly  believe  that  the  re- 
mains and  their  history  that  they  left  are  our  guardians  and  they 
will  always  be. 

That  is  our  interpretation  in  their  courts,  in  their  laws,  and  we 
ask,  upon  their  honor,  to  respect  that. 

Senator  Inouye,  we  have  buried  approximately  3,000  ancestors. 
We  haven't  put  a  cost  on  it,  but  we  know  it  is  going  to  be  for  the 
goodness  of  our  people  and  those  yet  born. 

I  would  like  to  say  that  without  adequate  input  into  this  proc- 
ess— and,  as  you  can  see,  the  testimony  that  we  have  submitted 
says  that  time  and  time  and  time  and  time  again — without  ade- 
quate input  from  the  indigenous  people  of  this  continent,  of  this 
country,  without  that  input  and  without  seeing  an  expeditious 
manner  the  reburying  of  these  remains  and  returning  of  these  arti- 
facts, all  we  are  doing  is  justifying  the  grave  robbing  that  took 
place. 

We  don't  see  that  adequate  input  from  Indian  Country.  We're 
seeing  the  justification  in  1995  of  grave  robbing. 

There  is  a  lot  of  frustration.  There  is  a  lot  of  emotion.  There  is 
a  lot  of  pain  in  this  subject,  in  this  matter  that  we  talk  about 
today. 

It  has  been  pointed  out  through  the  morning  that  it  is  because 
of  this — yes,  because  of  lack  of  money;  yes,  because  of  lack  of  re- 
sources— because  our  ancestors  and  their  remains  being  disturbed, 
we  are  suffering  a  lot  of  consequences  from  it. 

How  do  we  buy  serenity?  How  do  we  buy  that  peace  of  mind? 

In  this  sense,  in  English  words,  we  say  that  with  the  return  of 
our  relatives  we  can  attempt  to  address  it,  but  we  can't  buy  seren- 
ity. We  can't  buy  peace  of  mind.  We  are  asking  just  to  be  treated 
fairly,  just  to  be  heard,  just  to  enhance  and  be  able  to  build  upon 
this  government-to-government  relationship,  to  be  heard  as  these 
rules  and  regulations  and  policies  are  being  promulgated. 


42 

We  know  what's  going  on  now.  We  have  suffered  some  of  that 
pain  through  our  parents  and  grandparents.  It  has  been  asked  this 
morning  if  anybody's  parents'  or  grandparents'  or  great-grand- 
parents' graves  were  robbed,  what  would  happen?  It  would  end  up 
in  court.  The  perpetrators  would  get  their  due,  what's  coming. 
That's  simply  all  we're  asking.  Just  return  them.  Just  return  these 
remains  to  us,  please.  You've  studied  us  long  enough. 

With  regard  to  unidentifiable  remains,  we  can  believe  that  those 
remains  dating  back  500  years  or  more  are  American  Indians.  They 
are  Native  Americans  and  don't  have  to  be  studied  any  more.  If 
that  wasn't  the  case,  again,  there  would  have  been  a  monumental 
court  case.  If  those  remains  were  not  Native  American,  there  would 
have  been  a  monumental  court  case,  but  they  are  American  Indi- 
ans, and  we're  asking  for  their  return.  Take  them  out  of  those 
boxes.  Take  them  off  those  shelves.  Give  them  back  to  the  people 
and  let  us  decide  how  that  should  be  done,  because,  after  all,  as 
American  Indians,  as  indigenous  people,  those  are  our  ancestors. 

What  would  happen  if  we  went  to  Europe?  What  would  happen 
if  we  went  to  any  other  country  and  did  that?  That  was  done  to 
us. 

So  there  are  a  lot  of  unresolved  grief  issues  that  we're  living  with 
in  Indian  Country  today.  They  are  inter-generational.  They  are 
passed  on  time  and  time  again. 

What  we're  saying  today  is  we  know  and  we  believe  that,  with 
the  return  of  these  remains,  a  lot  of  those  inter-generational  grief 
issues  will  be  dealt  with,  will  be  addressed,  and  finally  we'll  begin 
to  continue  down  that  path  of  healing  as  American  Indian  people. 

Our  proposal  is  very  simple:  again,  to  look  at  government-to-gov- 
ernment relationships.  If  we  in  Indian  Country  don't  take  advan- 
tage of  this  policy  and  this  proclamation  that  President  Clinton 
made,  we  would  be  part  of  paternalism  and  we  would  be  part  of 
one  of  the  biggest  jokes  when  it  comes  to  American  Indian  policy 
with  regard  to  the  United  States,  because  commonsense  tells  us 
that  one  policy  is  not  going  to  work  for  555  respective  indigenous 
nations  of  North  America. 

Simply  what  we're  suggesting  as  a  start  is  to  get  a  true  govern- 
ment-to-government and  to  build  on  this  government-to-govern- 
ment relationship  that  will  allow  us  to  develop  regional  policies  of 
repatriation,  as  we're  talking  about  today,  policies  of  education  re- 
gionally, and  that  would  be  a  starting  step  to  a  true  government- 
to-government  relationship. 

We  know  that  the  Government  expended  a  lot  of  resources  in 
signing  those  treaties,  those  land  lease  agreements — a  lot  of  re- 
sources. They  didn't  just  say  one  policy's  going  to  take  care  of  all 
of  Indian  Country.  They  went  out  and  visited  all  of  our  respective 
ancestors  in  this  process,  and  that's  all  we're  saying — continue  that 
respect. 

So  this  would  be  a  starting  step  to  that  process  of  coming  out  to 
Indian  Country. 

Today  I  have  a  council  meeting  going  on  at  home.  I  have  asked 
the  leaders  of  our  tribal  government  for  permission  to  be  here  be- 
cause we  all  believe  this  is  a  very,  very  important  matter  that 
needs  to  be  addressed. 


43 

You  can  take  a  look  at  the  testimony  that  we've  provided.  Unfor- 
tunately, we  haven't  gotten  a  chance  to  see  any  of  the  draft  regula- 
tions. We  were  told  that  laws  and  mandates  preclude  us  from  see- 
ing those.  So  some  of  the  comments  that  are  in  here  may  have  been 
addressed.  We  hope  they  have  been — some  of  the  frustration  in 
here.  But  the  point  remains:  We  haven't  gotten  a  chance  to  see 
those. 

Just  to  give  you  an  example  of  the  frustration  that  was  shared 
with  the  Review  Committee,  one  of  the  items  we  bring  out  is  that 
the  proposed  regulations  published  in  May  1993  consisted  of  15 
pages.  The  proposed  final  regulations  are  reportedly  over  140 
pages.  Again,  this  may  be  unfounded,  because,  as  of  2  days  ago,  the 
regs  have  been  published,  but  this  is  some  of  that  frustration  that's 
encountered  when  we  don't  have  adequate  American  Indian  input 
into  policymaking. 

After  all,  it's  us.  It's  us  who  are  going  to  be  affected,  so  maybe 
it's  good  to  have  us  as  part  of  the  process. 

Last,  what  I  would  like  to  share — two  requests.  First,  if  we  could 
get  a  copy  of  this  transcript  of  what's  being  said  today  so  we  can 
match  it  up  with  what  has  been  experienced  for  us  with  this  proc- 
ess of  NAGPRA  repatriation.  Second,  if  we  can,  before  we  leave 
this  room,  have  a  copy  of  the  regulations  that  were  published  2 
days  ago  and  not  have  to  wait  for  longer  periods  of  time  to  get 
those,  we'd  really,  really  appreciate  it. 

I  apologize  if  some  of  the  comments  may  have  been  offensive  to 
policy,  policymakers,  or  to  the  system,  but  when  we  take  a  look  at 
remains,  we're  talking  about  our  people,  we're  talking  about  their 
spirits,  we're  talking  about  their  wisdom,  we're  talking  about  the 
connections  they  continued  to  make  with  us  before  the  United 
States  was  a  country.  We  know  that  those  are  of  simplicity,  those 
are  of  truthfulness,  those  are  of  honesty. 

Again,  I  thank  the  individuals  in  our  respective  homelands  that 
we  currently  occupy  for  their  work  that  they  have  done  as  they 
have  repatriated  and  continue  to  repatriate  remains  and  articles  of 
our  ancestors.  I  thank  them  for  their  pain  and  their  suffering  and 
their  tears  that  they  shed  for  us. 

And  I  thank  you,  the  committee,  for  allowing  me  this  opportunity 
to  bring  these  issues  before  you.  As  is  outlined  in  our  testimony, 
we  thank  you  for  what  you  have  done  to  make  this  historical  law 
do  what  it  was  intended  to  do — open  the  door  to  the  spirit  world 
one  final  time  for  our  loved  ones  and  begin  a  healing  process  by 
returning  the  sacred  items  that  we  need  to  revitalize  our  nations 
[Native  words]. 

[Remainder  of  testimony  in  Native  tongue.] 

Mr.  Taken  Alive.  I  thank  you  very  much,  Senator  Inouye.  If 
you've  got  comments  or  questions  for  us,  we'd  be  happy  to  entertain 
those.  Those  that  I  can't  answer,  I'll  ask  my  relative,  Mr.  Mentz, 
who  is  our  lead  person  on  this  back  home  on  Standing  Rock  and 
works  with  the  North  Dakota  Intertribal  Reinterment  Committee, 
to  answer  some  of  the  questions  or  comments  that  you  would  like 
to  find  at  this  time. 

[Prepared  statement  of  Mr.  Taken  Alive  appears  in  appendix.] 


44 

Senator  Inouye.  I  thank  you  very  much,  Chairman  Taken  Alive. 
As  I  have  indicated,  we  will  be  submitting  a  series  of  questions  in 
writing,  hoping  that  they  will  respond  to  them. 

As  to  your  request  that  the  final  regulations  be  available  to  you, 
I  will  have  one  here  for  you — my  own.  If  you  want  additional  cop- 
ies, copies  can  be  made.  There  are  35  pages  of  very  fine  print,  and 
I  would  need  new  prescriptions  to  be  able  to  read  this.  It  is  right 
here. 

I  would  like  to  ask  a  question  of  not  only  you,  sir,  but  all  other 
interested  parties.  I  think  all  of  us  will  agree  that  when  this  proc- 
ess comes  to  an  end,  when  all  the  existing  tribes  are  recognized  or 
not  recognized,  are  fully  satisfied  that  their  ancestors  have  been  re- 
turned to  them,  there  will  still  remain  in  shelves  and  boxes 
throughout  this  land  thousands  upon  thousands  of  unclaimed,  un- 
identified human  remains  that  we  know  are  Native  Americans.  The 
question  I  ask  is:  Do  you  have  any  suggestions  as  to  how  we  should 
provide  them  with  a  final  resting  place  that  they  can  go  in  peace? 

Mr.  Taken  Alive.  Yes;  my  response  to  that  is:  We  would  call 
upon  our  experts,  we  would  call  upon  our  respective  spiritual  lead- 
ers to  ask  guidance  from  the  spirit  world.  This  may  seem  prepos- 
terous, this  may  seem  crazy  as  we  speak  in  a  setting  as  we  are 
today  to  the  many  non-Indian  friends  and  foes  we  may  have.  They 
may  think,  "Boy,  those  guys  are  crazy,  the/re  ridiculous,  they're 
losing  their  mind,"  but  this  is  how  we  envision  continued  healing 
to  occur.  So  we  would  call  upon  those  means. 

In  fact,  maybe  they  are  here  waiting  for  us  to  sit  down  with  them 
and  put  into  writing  their  words  and  their  bits  of  advice.  I  know 
that  the  answer,  the  solution  is  out  there,  Senator.  It's  out  there 
for  us,  but  all  we're  saying  is,  in  this  system,  give  them  an  oppor- 
tunity to  offer  their  solutions,  and  just  as  the  tip  of  the  iceberg  we 
talk  about  NAGPRA  and  how  that  has  not  happened. 

That  would  be  my  response  to  your  question,  sir. 

Senator  Inouye.  Well,  I  hope  that  we  can  find  some  way  to  pay 
the  proper  respects  to  these  ancestors  of  yours  that  are  unidenti- 
fied and  unclaimed. 

Mr.  Taken  Alive.  If  I  could  add  on  to  that,  Senator,  at  the  turn 
of  the  century  there  was  a  historian  or  anthropologist  who  came  to 
Standing  Rock  Reservation  and  attempted  to  record  or  did  record 
a  lot  of  the  traditional  songs,  be  they  sacred,  ceremonial,  or  social 
songs,  and  put  them  on  a  tape. 

Since  that  time,  everybody  thought  that  was  the  gospel  truth, 
what  had  been  recorded.  But  because  of  technology  at  that  time, 
not  being  able  to  preserve  those  recordings,  we  have  come  to  find 
out,  when  we  speed  correct  those  particular  songs,  the  words  are 
different,  the  meaning  is  different. 

The  point  I'm  making:  Sometimes  we  think  through  policy,  some- 
times we  think  in  today's  world  that  we're  doing  the  right  thing, 
but  in  reality  we're  not.  We're  not  doing  the  right  thing. 

So  I  just  want  to  try  to  emphasize  or  illustrate  just  what  I  have 
said.  For  almost  100  years,  people  thought  that  this  was  the  gospel 
truth  of  some  of  those  songs  that  were  recorded. 

I  might  add  that  they  are  stored  at  a  Smithsonian  Institute  on 
wax  means  of  recording.  Come  to  find  out,  it  is  not  the  gospel 


45 

truth.  When  they  are  speed  corrected,  they  have  a  totally  different 
meaning.  That's  just  to  illustrate  my  point  again. 

Senator  INOUYE.  Thank  you  very  much,  Chairman  Taken  Alive. 

If  I  may,  I  would  like  to  call  upon  the  chairman  of  the  American 
Association  of  Museums  and  the  president  and  chief  executive  offi- 
cer of  the  Milwaukee  Public  Museum,  William  Moynihan. 

STATEMENT  OF  WILLIAM  MOYNIHAN,  CHAIRMAN,  AMERICAN 
ASSOCIATION  OF  MUSEUMS;  PRESIDENT  AND  CHIEF  EXECU- 
TIVE OFFICER,  MILWAUKEE  PUBLIC  MUSEUM,  MILWAUKEE, 
WI 

Mr.  Moynihan.  Thank  you,  Mr.  Chairman.  I  appreciate  the  op- 
portunity to  be  here  today  and  to  testify  on  behalf  of  my  own  insti- 
tution and  the  American  Association  of  Museums. 

I  can  say  with  some  enthusiasm  and  great  pride  that  the  Mil- 
waukee Public  Museum  is  committed  to  implementing  both  the  in- 
tent and  the  spirit  of  NAGPRA  It  has  been  a  commitment  right 
from  the  beginning,  and  well  see  it  through. 

I  thought  it  might  be  helpful  to  use  our  experience  as  an  example 
from  the  museum  world  on  just  what  we've  been  doing  over  the 
last  few  years. 

As  background,  the  Milwaukee  Public  Museum  is  an  institution 
that's  probably  a  mid-sized  museum.  We  have  a  budget  of  $8  mil- 
lion yearly.  We  have  a  staff  of  135  people,  full-time  equivalents, 
and  about  4.5  million  items  in  our  collections — the  entire  collec- 
tions. 

We  were,  when  NAGPRA  was  passed,  a  department  of  Milwau- 
kee County,  but,  because  of  decreasing  funding  from  Milwaukee 
County,  the  museum  became  a  private  entity.  In  the  process,  we 
lost  $1.5  million  worth  of  funding.  We  lost  27  percent  of  our  staff. 
Our  budgets  were  cut,  and  a  lot  of  programs  lost. 

I  think  that's  important  background  to  get  a  sense  of  the  commit- 
ment that  we  have  made  at  the  Milwaukee  Public  Museum,  be- 
cause our  most  recent  estimates  show  that  we  will  be  committing 
well  in  excess  of  one-half  a  million  dollars  to  implement  the  intent 
of  Congress  on  this  matter. 

The  task  has  been  a  daunting  one.  We've  embraced  it  with  en- 
thusiasm, but  it  has  been  a  daunting  task. 

We  have  approximately  50,000  items  in  our  archaeology  collec- 
tion that  are  affected  by  NAGPRA,  approximately  22,000  in  our 
ethnology  collections.  Also,  the  institution  has  been  collecting  mate- 
rial for  its  113  years  of  existence,  so  the  records  are  uneven,  de- 
pending on  different  professional  standards  over  time,  so  we've  had 
to  go  back  and  reconstruct  records  according  to  the  questions  we 
now  have  to  answer  that  NAGPRA  has  brought  to  us. 

Even  given  these  circumstances,  I  think  what  we've  done  is  laud- 
atory. If  there  is  any  single  accomplishment  that  has  been  most  im- 
portant to  my  institution,  what  NAGPRA  has  brought  to  us  is  a 
new  and  productive  relationship  with  Native  American  groups. 

We  also  have  been  conducting  these  inventories.  We  conducted 
the  one  by  the  deadline  of  1993  by  going  beyond  the  law.  We  didn't 
just  meet  the  minimum  requirements.  We  went  beyond  and,  I 
think,  in  the  process  built  up  a  great  deal  of  credibility  and  con- 
fidence in  Native  American  groups  that  have  dealt  with  us. 


46 

Since  the  1993  deadline,  we  have  been  doing  two  things.  One  is 
dealing  with  the  archaeology  section,  but  also  responding  to  numer- 
ous phone  calls,  site  visits,  and  letters  requesting  further  informa- 
tion. Again,  I  think  we've  gone  beyond  the  law  in  the  types  of  infor- 
mation and  the  completeness  in  our  response. 

We've  also  taken  a  leadership  role  whenever  we  could  or  when- 
ever we  were  called  upon  to  provide  consulting  help  to  area  Native 
American  groups  interested  in  expanding  their  own  museums, 
building  new  museums,  care  of  the  collection,  or  training  profes- 
sionals. 

Like  the  museum  world,  in  general,  the  lack  of  final  regulations 
5  years  into  the  law  and  after  two  of  the  major  deadlines  had,  in 
fact,  passed  caused  problems  for  us.  It  caused  ambiguities.  It 
caused  us  to  question  a  number  of  what  should  have  been  rel- 
atively straightforward  decisions  by  calling  colleagues  at  other  in- 
stitutions, by  trying  to  come  up  with  consistent  responses,  and  it 
just  caused  more  difficulty  in  our  processes. 

The  other  area  that  has  caused  difficulty  is  the  funding  area,  as 
I  said.  We  will  have  expended  well  in  excess  of  half  a  million  dol- 
lars. We  have  not  been  one  of  those  museums  who  has  been  suc- 
cessful in  receiving  the  NAGPRA  grant. 

Let  me  close  by  making  the  two  recommendations  that  are  in  my 
written  testimony.  One  may  be  not  necessary  any  more.  My  written 
testimony  called  for  the  final  issuance  of  the  regulations,  but  I 
have  not  seen  the  final  regulations.  My  understanding  is  there  are 
still  issues  that  are  not  completely  addressed,  and  so  they're  not 
really  final. 

The  Native  Americans  of  this  land  and  the  museums  need  the 
final  regulations  finally  after  all  this  time  in  order  to  go  about  our 
business. 

Second,  I  want  to  join  my  colleagues  at  this  table  and  urge  the 
Congress  to  urge  the  Department  of  Interior  to  increase  the  fund- 
ing level  available  to  Native  Americans  and  available  to  museums 
to  the  $10  million  level. 

Thank  you,  Mr.  Chairman. 

[Prepared  statement  of  Mr.  Moynihan  appears  in  appendix.] 

Senator  INOUYE.  Thank  you  very  much,  Mr.  Moynihan. 

You've  indicated  that,  because  of  certain  problems  such  as  fund- 
ing? y°u  have  not  been  able  to  complete  your  inventory  in  the  time 
allotted.  How  much  more  time  do  you  think  your  museum  will  re- 
quire to  complete  the  inventory? 

Mr.  Moynihan.  Right,  Senator.  We  are  one  of  the  museums  that 
has  requested  an  extension.  We  didn't  realize  the  extent  of  the 
problems  of  our  records  in  terms  of  our  archaeological  collections. 

Our  request  is  submitted  for  an  extension  of  2  years,  our  feeling 
is  we  can  do  it  within  that  time,  short  of  that.  We're  going  to  try 
to  do  it  well  before  that,  but  we've  asked  for  a  2-year  extension. 

Senator  Inouye.  Do  you  have  any  information  about  the  larger 
museums,  how  much  time  they  would  need?  Or  do  they  need  any 
time? 

Mr.  Moynihan.  I'm  sorry,  Senator.  I  don't  know. 

Senator  Inouye.  Mr.  Moynihan,  I  noted  that  when  this  process 
is  over,  when  all  of  the  existing  tribes — and  I  use  that  word  very 
definitely — existing  tribes  are  satisfied  that  their  ancestral  remains 


47 

have  been  returned,  there  will  still  remain  unclaimed  and  unidenti- 
fied thousands  of  human  remains,  which  everyone  would  conclude 
are  Native  Americans.  What  do  you  think  we  should  do  with  them? 
Should  the  Secretary  of  the  Interior  promulgate  regulations  to  ad- 
dress this  problem? 

Mr.  MoYNlHAN.  I'd  like  to  respond  on  behalf  of  my  own  institu- 
tion. I  don't  know  the  position  of  the  American  Association  of  Mu- 
seums on  this.  I  think  it  would  be  very  important  that  we  come  up 
with  a  process  that  does  not  put  the  onus  on  an  individual  museum 
to  determine  where,  in  fact,  remains  should  go. 

I  think  there  ought  to  be  a  process  to  return  all  the  remains. 

Senator  Inouye.  It  will  be,  I  think,  a  major  problem  for  all  of  us 
to  address.  We  would  like  to  work  together  with  the  leaders  of  In- 
dian Country  and  leaders  of  the  museum  community  to  come  up 
with  something,  because  otherwise  you're  going  to  have  on  these 
shelves  thousands  of  skulls  and  skeletal  remains  with  no  home, 
and  I  think  all  of  us  agree  that  we  should  treat  these  remains  with 
the  respect  that  they  are  entitled  to  and  provide  them  with  a  final 
resting  place. 

So  I  look  forward  to  receiving  your  thoughts  and  your  rec- 
ommendations in  this  area. 

As  to  copies,  we  do  not  have  too  many,  but  we  would  be  very 
happy  to  share  the  35  pages  with  you. 

Mr.  Moynihan.  Thank  you,  sir. 

Senator  Inouye.  Once  again,  on  behalf  of  the  committee  and  on 
behalf  of  Chairman  McCain,  I  would  like  to  thank  all  of  you  for 
your  patience  in  staying  with  us  this  morning  and  providing  us 
with  your  wisdom,  and,  as  we  in  Hawaii  would  say,  your  manao, 
because  they  are  most  helpful  to  us. 

Apparently  it  would  appear  that,  as  a  result  of  the  recent  court 
decision,  amendments  may  be  necessary  to  the  act  so  that  remains 
will  be  given  adequate  protection. 

I  would  like  to  announce  that  the  record  will  be  kept  open  for 
2  weeks.  If  you  have  any  addendums,  any  supplemental  informa- 
tion you  would  like  to  share  with  us,  or  if  others  in  the  audience 
would  like  to  express  their  words,  please  submit  them  to  the  com- 
mittee. 

With  that,  thank  you. 

[Whereupon,  at  12:05  p.m.,  the  committee  was  adjourned,  to  re- 
convene at  the  call  of  the  Chair.] 


APPENDIX 


Additional  Material  Submitted  for  the  Record 


Prepared  Statement  of  Hon.  Ben  Nighthorse  Campbell,  U.S.  Senator  from 

Colorado 

Mr.  Chairman,  thank  you  for  providing  me  the  opportunity  to  make  a  brief  state- 
ment and  thank  you  for  holding  this  hearing  on  the  status  of  the  implementation 
of  the  Native  American  Grave  Protection  and  Repatriation  Act  [NAGPRA]. 

As  an  original  cosponsor  of  NAGPRA,  while  serving  in  the  House,  I  strongly  en- 
dorse the  goals  and  objectives  embodied  in  this  statute.  As  I  recall,  this  legislative 
initiative  took  many  years  to  develop  and  went  through  many  modifications  prior 
to  its  enactment  in  1990. 

Central  to  the  development  of  NAGPRA  was  to  provide  Indian  tribal  governments 
with  the  authority  to  reclaim  vital  elements  of  their  respective  cultures:  Funerv  ob- 
jects, ceremonial  objects,  and  bones  of  their  ancestors,  which  are  today  housed  and 
stored  in  museums  and  other  repositories  around  the  country.  Enactment  of 
NAGPRA  is  in  many  ways  a  vital  element  of  our  ability  to  preserve  our  native  cul- 
tures. 

It  has  been  5  years  since  NAGPRA  was  signed  into  law  by  President  Bush.  While 
there  has  been  progress  in  the  implementation  of  NAGPRA,  it  seems  progress  has 
been  rather  slow  and  incremental. 

I  do  have  some  concerns  regarding  the  implementation  of  NAGPRA.  First,  it  is 
apparent  that  the  costs  associated  with  the  implementation  of  NAGPRA  are  partly 
responsible  for  its  slow  implementation.  Considering  the  tough  budgetary  con- 
straints Congress  currently  finds  itself  in,  funding  may  continue  to  be  difficult. 
However,  last  year  Congress  did  appropriate  approximately  $3  million  for  the  imple- 
mentation that  would  allow  museums  and  other  institutions  to  complete  their  inven- 
tory process.  I  am  interested  to  know  what  specific  progress  was  made  in  this  re- 
gard and  to  hear  estimates  on  what  further  appropriations  will  be  needed.  I  am  also 
interested  to  know  what  other  Interior  agencies  have  been  doing  to  comply  with 
NAGPRA.  Nonetheless,  I  would  like  to  see  NAGPRA  continue  to  be  funded  at  an 
appropriate  level  which  will  ensure  continued  success. 

Second,  I  would  also  like  to  hear  more  about  the  actual  implementation  process. 
I  realize  implementation  and  funding  go  hand  in  hand.  However,  I  am  interested 
in  what  mandates  have  been  accomplished,  and  to  date,  what  it  has  yet  to  do,  and 
what  difficulties  have  been  encountered. 

Finally,  the  Repatriation  Review  Committee  was  kind  enough  to  provide  me  with 
a  copy  of  their  report  on  NAGPRA.  In  this  report  the  committee  addresses  the  need 
to  clarify  the  definition  of  "Indian  tribe."  I  would  like  to  hear  more  regarding  the 
problems  being  encountered  because  of  the  current  definition  and  what  rec- 
ommendations the  committee  has  to  alleviate  these  problems. 

I  am  hopeful  this  hearing  will  enable  the  members  of  this  committee  to  accurately 
understand  what  has  been  done  to  implement  NAGPRA,  and  importantly,  what 
more  needs  to  be  done  to  uphold  our  commitment  to  the  Indian  people,  while  maxi- 
mizing the  resources  that  are  committed  to  the  implementation  of  NAGPRA.  I  look 
forward  to  the  testimony  provided  this  morning,  and  I  thank  you  all  for  your  time. 

(49) 


50 

Prepared  Statement  of  Hon.  Byron  L.  Dorgan,  U.S.  Senator  from  North 

Dakota 

Mr.  Chairman,  I  am  pleased  that  the  committee  has  decided  to  hold  this  most  im- 
portant hearing  on  the  implementation  of  the  Native  American  Graves  Protection 
and  Repatriation  Act,  Public  Law  101-601.  I  am  grateful  to  the  chairman  for  ex- 
tending an  invitation  to  testify  to  Jesse  Taken  Alive,  chairman  of  the  Standing  Rock 
Sioux  Tribe,  who  is  accompanied  by  Tim  Mentz,  the  NAGPRA  representative  of  the 
Standing  Rock  Sioux.  I  look  forward  to  hearing  their  testimony  and  the  testimony 
of  the  other  distinguished  witnesses  here  today. 

I  would  like  to  take  this  opportunity  to  briefly  mention  that  I  have  a  long  stand- 
ing interest  in  the  issues  we  are  discussing  today.  As  a  member  of  the  House,  I  se- 
cured passage  of  H.R.  1124  on  November  13,  1989.  This  bill,  which  was  designed 
to  expedite  the  repatriation  of  Indian  remains  and  grave  goods  by  requiring  Federal 
agencies  to  inventory  and  return  Indian  remains  to  tribes  for  reburial,  was  enacted 
into  law  on  November  28,  1989,  as  part  of  the  National  Museum  of  American  Indi- 
ans Act. 

Implementing  NAGPRA  is  far  more  than  an  exercise  in  administrative  rule- 
making. Indeed,  it  involves  the  very  essence  of  Indian  culture.  For  that  reason,  the 
Federal  Government  has  a  clear  and  compelling  obligation  to  consult  with  the  In- 
dian people  about  this  matter. 

Unfortunately,  I  have  received  information  from  tribal  officials  in  North  Dakota 
which  indicates  exactly  the  opposite.  They  tell  me  that  the  proposed  final  regula- 
tions have  been  developed  without  meaningful  consultation  and  without  taking  into 
account  both  the  letter  and  the  spirit  of  Public  Law  101-601.  I  would  like  to  take 
this  opportunity  to  outline  some  of  their  serious  concerns,  which  I  hope  will  be  ad- 
dressed fully  during  the  course  of  this  hearing.  I  have  contacted  the  Park  Service 
and  the  BIA  about  these  issues.  Specifically,  Ihave  been  told  by  Chairman  Taken 
Alive,  who  will  testify  today,  and  by  Chairperson  Twila  Martin  Kekahbah,  of  the 
Turtle  Mountain  Band  of  Chippewa  that: 

Three  drafts  of  regulatory  language  were  compiled  by  Federal  employees,  without 
any  tribal  input,  before  members  of  the  NAGPRA  Review  Committee  were  ap- 
pointed, which  means  that  the  Review  Committee  began  promulgating  regulations 
after  three  drafts  were  produced  without  any  guidance  from  the  Indian  community. 
In  addition,  the  Bureau  of  Indian  Affairs  attended  just  one  meeting  with  the  other 
Federal  employees  who  developed  those  initial  three  drafts.  Obviously,  the  tone  of 
the  draft  regulations  had  already  been  established  by  that  time.  Due  to  the  lack  of 
consultation,  tribal  officials  find  the  entire  definitions  section  problematic,  most  no- 
tably in  the  definitions  of  Indian  lands  and  unassociated  funerary  objects.  These  two 
definitions  very  well  could  impact  issues  as  fundamental  as  tribal  sovereignty  and 
the  ability  to  fully  implement  NAGPRA  according  to  Congressional  intent,  which 
was  to  provide  for  the  return  of  certain  ancestral  remains,  burial  belongings  and 
other  sacred  and  cultural  property  to  the  Indian  people. 

The  final  proposed  regulations  have  grown  from  approximately  15  pages  to  more 
than  140  pages.  Despite  this  major  increase  in  the  length,  and  most  assuredly  the 
scope,  of  tne  regulations,  the  National  Park  Service  decided  through  an  internal  ad- 
ministrative decision  to  not  release  the  document  for  tribal  review.  Assistant  Sec- 
retary Deer,  correctly  in  my  view,  has  refused  to  sign  off  on  the  proposed  final  regu- 
lations until  they  are  published  in  the  Federal  Register  with  a  90-day  public  com- 
ment period  so  that  tribes  may  voice  their  concerns.  However,  I  am  very  disturbed 
by  the  Park  Service's  unwillingness  to  open  up  the  regulatory  process  to  the  tribes. 

As  all  members  of  this  Committee  are  well  aware,  we  have  a  special  trust  respon- 
sibility to  Native  Americans.  I  fear  that  this  responsibility  has  not  been  met  during 
the  process  by  which  the  final  proposed  NAGPRA  regulations  were  developed.  I 
hope  that  today's  hearing  with  bring  such  issues  to  light,  and  will  result  in  the  cor- 
rection of  any  behavior  which  has  resulted  in  the  omission  of  tribal  views  from  the 
development  of  a  regulation  to  implement  a  law  of  such  major  importance  to  the 
Native  American  people. 


51 


National 
Congress  of 
American 
Indians 


Executive  Committee 

President 

gaiashkibos 

Chtppewa 

First  Vice  President 

Susan  Mas  ten 

Ytirok 

Recording  Secretary 

S  Diane  Ketley 

Cherokee 

Treasurer 

Mary  Ann  Antone 

Tohono  O'odham 

Area  Vice  Presidents 

Aberdeen  Area 
Ken  Billingsley 
Standing  Rod  Sioux 

Albuquerque  Area 
Charles  )   Dorame 
Tesuque  Pueblo 
Anadarko  Area 
Merle  Boyd 

Bilbngs  Area 
John  Sunchild,  Sr. 
Chtppewa  Cree 

Juneau  Area 
Willie  Kasayulie 
Yup'ik 

Minneapolis  Area 
Marge  Anderson 
Mille  Ua  Ophwe 
Muskogee  Area 
Rena  Duncan 
Chickasaw 
Northeast  Area 
Keller  George 
Onnda 

Phoenu  Area 
Irene  C.  Cuch 
Northern  Ute 

Portland  Area 
Bruce  Wynne 
Spokane 

Sacramento  Area 
Hank  Murphy 
Sycuan 

Southeast  Area 
A  Bruce  Jones 


Executive  Director 
JoAnn  K  Chase 
Mandfln  Hidalsa 


2010  Massachusetts  Ave., 
Second  Floor 
Washington,  DC  20036 
202.466.776? 
202.466.7797 /acsunuv 


Prepared  Statement  of  W.  Ron  Allen,  President 

National  Congress  of  American  Indians  (NCAI) 

To  the  Senate  Committee  on  Indian  Affairs 

On  the  Implementation  of  the  Native  American  Graves 

Protection  and  Repatriation  Act  (P.L.  101-601) 


6  December  1995 


I.         Introduction 


Good  morning  Chairman  McCain,  Vice-Chairman  Inouye  and  distinguished 
members  of  the  Indian  Affairs  Committee.  For  those  that  do  not  know  me,  I  am 
Ron  Allen,  President  of  the  National  Congress  of  American  Indians  (NCAI)  and 
Chairman  of  the  Jamestown  S'KlaUam  Tribe.  NCAI  is  the  oldest,  largest,  and  most 
representative  American  Indian  /  Alaska  Native  advocacy  organization  in  the  nation, 
comprised  of  nearly  200  member  nations,  dedicated  to  ensuring  the  sovereignty  of 
native  governments  and  the  survival  and  viability  of  native  culture.  I  respectfully 
submit  this  statement  on  behalf  of  our  member  tribes  concerning  the  implementation 
of  the  Native  American  Graves  Protection  and  Repatriation  Act  of  1990  (hereafter 
"NAGPRA"). 

Following  the  passage  of  NAGPRA  Native  Americans  rejoiced  at  the 
prospect  that  our  lost  ancestors  and  sacred  objects  would  be  returned  after  decades 
of  separation.  Congress'  intent  in  enacting  NAGPRA  was  to  ensure  that  Native 
American  remains  and  funerary  objects  retained  by  the  federal  government, 
universities,  and  the  museum  community  are  returned  to  the  appropriate  tribes  and 
tribal  organizations.  In  providing  a  legal  basis  for  the  return  of  grave  goods  and 
human  remains,  NAGPRA  is  "remedial"  legislation.  However,  NAGPRA  cannot 
remedy  the  problem  it  was  intended  to  unless  and  until  adequate  funds  are 
appropriated  so  that  tribes  and  museums  can  complete  the  repatriation  process. 


n.       NAGPRA  Grants  to  Tribes 

Though  Indian  tribes  are  currently  facing  difficult  times  and  an  ever-changing 
legislative  landscape  in  the  104th  Congress,  repatriation  remains  a  major  priority  for 
Native  people.  We  see  the  return  of  our  ancestors  as  a  return  of  our  cultural  and 
spiritual  foundations;  the  very  heart  of  our  nations.  To  bring  our  people  home  to 
their  rightful  resting  places,  and  to  fulfill  the  mandates  of  NAGPRA  we  need  the 
necessary  funding.  As  the  NAGPRA  process  continues  to  move  forward,  Native 
communities  are  being  asked  to  assume  a  more  prominent  role  in  implementing 
NAGPRA.  Following  the  statutory  deadline  for  museum  inventories  in  November 
1995,  repatriation  activity  will  intensify  and  will  continue  to  do  so  as  we  move 


52 


further  along  in  implementing  the  Act.  If  the  goals  of  NAGPRA  are  to  be  accomplished.  Tribal 
access  to  funding  is  mandatory  to  assist  them  in  working  with  the  university  and  museum 
communities  to  identify  and  repatriate  sacred  objects  and  remains. 

Our  member  tribes  responded  to  an  informal  survey  in  1993  taken  to  determine  tribal  needs 
in  complying  with  the  Act.  The  responses  to  the  survey  reveal  that  actual  tribal  need  far  exceeds 
both  the  National  Park  Service  estimates  of  financial  need  and  the  grant  funds  appropriated  for 
FY94  and  FY95.  As  you  know,  the  university  and  museum  communities  have  begun  to  present 
their  inventories  to  the  tribes.  These  inventories  list  literally  millions  of  sacred  objects  and 
ancestral  remains  and  as  they  are  received,  Indian  tribes  must  respond  to  them  under  the  mandates 
of  NAGPRA.  Tribal  response  requires  funding  for  technical  expertise  (historical,  anthropological, 
ethnological,  and  archaeological)  as  well  as  appropriate  legal  assistance,  especially  in  disputed 
repatriation  claims.  Under  the  provisions  of  NAGPRA,  a  dispute  over  a  repatriation  is  heard  by 
the  NAGPRA  Review  Committee.  However,  it  is  still  necessary  for  tribes  to  hire  independent 
experts  to  make  their  case.  These  experts  can  be  extremely  expensive  and  most  tribes  simply  do 
not  have  the  funding  available  to  hire  them.' 

Section  10  of  NAGPRA  authorizes  the  Secretary  of  the  Interior  to  make  grants  to  the 
Tribes  for  the  purpose  of  "assisting  such  tribes  and  organizations  in  the  repatriation  of  Native 
American  cultural  items."  Furthermore,  the  United  States  has  a  trust  responsibility  to  Indian 
tribes  and  their  members  concerning  the  potentially  repatriated  goods  and  remains.  This 
responsibility  carries  with  it  the  highest  of  fiduciary  standards  guiding  the  conduct  of  federal 
agencies,  here  the  National  Park  Service  and  the  Department  of  the  Interior,  in  their  treatment  of 
tribes  in  the  area  of  repatriation.  Given  recent  appropriations  experience,  it  is  unlikely  the  federal 
obligation  to  tribes  will  be  fulfilled  in  the  realm  of  repatriation. 

Despite  a  joint  tribal  -  museum  community  request  of  some  $10  million  for  FY94  through 
FY96,  Congress  has  again  appropriated  a  fraction  of  that  amount  ($2.3  million)  for  NAGPRA 
-related  grants.  This  funding  level  is  far  below  the  projected  funding  level  needed  to  comply  with 
the  provisions  of  the  Act  and  well  below  the  $10  million  level.  Mr.  Chairman,  I  think  you  can 
understand  that  tribes  must  be  provided  with  sufficient  funding  to  be  equal  partners  in  the 
NAGPRA  process  or  it  simply  will  not  succeed.  Museums  and  universities  already  have  much 
of  the  resources  and  qualified  staff  persons  available  to  implement  the  process,  while  tribes  must 
take  on  the  task  of  hiring  new  staff  and  developing  a  whole  new  implementation  program  to 
comply  with  the  mandates  of  the  Act.  It  is  imperative,  Mr.  Chairman,  that  any  review  of  the 
progress  made  in  implementing  NAGPRA  over  the  past  four  years  factor  in  the  relative  scarcity 
of  federal  funding  to  ensure  its  ultimate  success. 


In  the  Larson  Bay  case  of  1991  the  Smithsonian  Institution  contested  the  right  of  the  Larson  Bay  Tribal 
Council  to  all  of  the  remains  unearthed  at  the  Larson  Bay  burial  site.  Because  of  this  dispute,  the  Native  American  Rights 
Fund,  who  represented  the  Larson  Bay  Tribal  Council,  was  required  to  retain  experts  in  anthropology  to  help  with  their 
case.  The  Smithsonian  hired  their  own  experts  and  there  was  considerable  debate  before  it  was  eventually  determined 
that  sufficient  evidence  existed  to  warrant  the  return  of  the  remains. 


53 


111.       Conclusion 

Mr.  Chairman,  today  I  have  only  touched  on  the  most  critical  of  obstacles  hindering  the 
full  and  complete  implementation  of  the  NAGPRA  —  basic  funding  for  Indian  tribes.  To 
properly  and  faithfully  carry  out  Congressional  intent  and  in  order  to  facilitate  the  NAGPRA 
process,  tribes  must  have  access  to  NAGPRA  funding.  Enclosed  are  copies  of  Resolutions  NV- 
93-202  and  NV-93-170,  adopted  by  our  member  tribes  regarding  grant  levels  made  available  to 
Tribes  under  the  Act.  As  you  can  see,  our  tribes  have  expressed  the  need  for  funding  sufficient 
to  "meaningfully  implement"  the  Act;  and  have  also  urged  that  tribes  receive  "the  full  amount  of 
the  appropriations  authorized  under  the  NAGPRA  allocation."  (See  attached  resolutions).  While 
acknowledging  the  difficulties  of  the  current  budget  situation,  it  is  imperative  that  sufficient 
funding  is  made  available  to  tribes  now.  In  the  alternative,  the  level  of  funds  necessary  to  ensure 
compliance  with  the  Act  in  the  years  ahead  will  be  even  greater. 

Mr.  Chairman,  I  again  wish  to  thank  you  for  the  opportunity  to  submit  this  statement,  and 
I  look  forward  to  appearing  before  you  very  soon  to  discuss  the  many  problems  facing  Indian 
tribes  and  Alaska  Native  villages. 


54 


National  Congress  of  American  Indians 

Est.  1944 


EXECUTIVE  COMMITTEE 


RESOLUTION  NO.  NV-93-170 


First  Vice  Pres.d«,i 
Jot«ph  T.  Goombi 

Recording  Secretary 
S.  Diane  Kelley 


Jtmmtlown  S'ltWIrn 

AREA  VICE  PRESIDENTS 

Aberdeen  Area 

Chmyonno  Rivmr  Sioua 

Albuquerque  Area 
Raymond  D.  Apodaca 
Vt  /ef  r  Da/  Sut  Puoblo 


RESOLUTION      TO      SUPPORT      FULL      PROTECTION      OF 
FUNERARY  REMAINS 

WHEREAS,  we,  the  members  of  the  National  Congress  of  American  Indians  of  the 
United  States,  invoking  the  divine  blessing  of  the  Creator  upon  our 
efforts  and  purposes,  in  order  to  preserve  for  ourselves  and  our 
descendants  rights  secured  under  Indian  cultural  values,  and  otherwise 
promote  the  welfare  of  the  Indian  people,  do  hereby  establish  and 
submit  the  following  resolution: 

WHEREAS,  the  National  Congress  of  American  Indians  (NCAI)  is  the  oldest  and 
largest  national  organization  established  in  1944  and  comprised  of 
representatives  of  and  advocates  for  national,  regional,  and  local 
Tribal  concerns;  and 


Billings  Area 
Earl  Old  Person 
Slmckt.tl 

Juneau  Area 
Edward  K.  Thomas 
TlirtgllHmldt 

Minneapolis  Area 
James  Crawlord 
fotmtl  County  Polmvtt 


Northeastern 
J.C.  Seneca 


Portland  Ac. 


WHEREAS,  the  health,  safety,  welfare,  education,  economic  and  employment 
opportunity,  and  preservation  of  cultural  and  natural  resources  are 
primary  goals  and  objectives  of  NCAI;  and 

WHEREAS,  the  desecration  of  funerary  remains  and  objects  is  still  rampant 
throughout  all  geographic  areas  in  the  United  States;  and 

WHEREAS,  the  Native  American  Graves  Protection  and  Repatriation  Act 
(NAGPRA)  does  not  wholly  address  these  hundreds  of  desecrations 
within  state  and  private  lands  that  are  perpetrated  by  graverobbers 
who  are  motivated  by  greed,  except  for  the  state  of  Hawaii; 

NOW  THEREFORE  BE  IT  RESOLVED,  that  the  NCAI  does  hereby  support 
amendatory  language  to  the  NAGPRA  to  extend  protection  of  funerary  remains  and 
objects  on  all  lands  within  the  exterior  boundaries  of  the  U.S.  wheresoever  they  may 
be  situated. 


Sacramento  Area 

Susan  Masten 


BE  IT  FURTHER  RESOLVED,  that  the  tribes  receive  the  full  amount  of  the 
appropriations  authorized  uner  the  NAGPRA  allocation. 


EXECUTIVE  DIRECTOR 

(Interim) 

Rachel  A.  Joseph 

Shoihono  Pliulo  Mono 


900  Pennsylvania  Avenue  S.E.  •  Washington,  D.C.  20003  •  (202)  546-9404   •  Fax  (202)  546-3741 


55 


NV-93-170 
Page  2 


CERTIFICATION 


The  foregoing  resolution  was  adopted  at  the  1993  Annual  Convention  ot  the 
National  Congress  of  American  Indians,  held  at  the  Nugget  Hotel,  in  Reno/Sparks, 
Nevada,  on  3rd  day  of  December  1993.  with  a  quorum  present. 


^uu!XJdr\  KtAzn*-^ 


ikibos,  President 


ATTEST: 


Adopted  by  the  General  Assembly  during  the  1993  Annual  Convention,  November 
28-December  3,  1993,  Reno/Sparks,  Nevada. 


56 


National  Congress  of  American  Indians 

Est-  1944 


IECUT1VE  COMMITTEE 


REA  VICE  PKESIDEHTl 


RESOLUTION  NO.  NV-93-202 

RESOLUTION  TO  REQUEST  GRANT  APPROPRIATIONS  FROM 
THE  NATIONAL  PARK  SERVICE  FOR  THE  NATIVE 
AMERICAN  GRAVES  PROTECTION  AND  REPATRIATION  ACT 

WHEREAS,  we,  the  members  of  the  National  Congress  of  American  Indians  of  the 
United  States,  invoicing  the  divine  blessing  of  the  Creator  upon  our 
efforts  and  purposes,  in  order  to  preserve  for  ourselves  and  our 
descendants  rights  secured  under  Indian  cultural  values,  and  otherwise 
promote  the  welfare  of  the  Indian  people,  do  hereby  establish  and 
submit  the  following  resolution: 

WHEREAS,  the  National  Congress  of  American  Indians  (NCAI)  is  the  oldest  and 
largest  national  organization  established  in  1944  and  comprised  of 
representatives  of  and  advocates  for  national,  regional,  and  local 
Tribal  concerns;  and 


iMaaapoEs  Aw 
•  «■•»  Crawford 
ormit  Commtf  Poimwmtoml 


WHEREAS,  the  health,  safety,  welfare,  education,  economic  and  employment 
opportunity,  and  preservation  of  cultural  and  natural  resources  are 
primary  goals  and  objectives  of  NCAI;  and 

WHEREAS,  on  November  16,  1990,  President  George  Bush  signed  into  law  P.L. 
100-601  the  Native  American  Graves  Protection  and  Repatriation  Act 
(NAGPRA);  and 


art! —J  Ar» 
rue*  Wynn« 


-XECUT1VE  DIRECTOR 


WHEREAS,  the  NAGPRA  requires  federal  agencies  universities  and  museums 
which  received  federal  funding  on  or  after  November  16,  1990,  to 
undertake  and  complete  a  summary  of  all  portions  of  their  collections 
to  determine  what  if  any  items  which  may  be  classified  as  a 
unassociated  funerary  object,  a  sacred  object  or  object  of  cultural 
patrimony  subject  to  the  repatriation  provisions  contained  in  the 
NAGPRA  and  that  such  summaries  were  to  have  been  completed  by 
November  16,  1993;  and 

WHEREAS,  the  NAGPRA  requires  that  these  federal  agencies,  universities  and 
museums  identify  the  cultural  affiliation  of  any  such  objects  by  the 
use  of  the  anthropological  and  archaeological  record,  ethnographic 
information,  written  literature  and  other  methods;  and 

WHEREAS,  the  NAGRPA  requires  that  these  federal  agencies,  universities  and 
museums  initiate  "consultation"  with  Tribal  organizations,  groups  and 
families;  and 


900  Pennsylvania  Avenue  S.E.  •  Washington,  D.C.  20003  •  (202)  546-9404   •  Fax  (202)  546-3741 


57 


NV-93-202 
Page  2 

WHEREAS  the  National  Park  Service  is  designated  as  the  agency  charged  with 
administering  a  grant  program  to  aid  Tribal  organizations,  groups  and 
families  with  repatriation  activities. 

NOW  THEREFORE  BE  IT  RESOLVED,  that  the  NCAI  does  hereby  request  and 
support  the  appropriations  necessary  to  meaningfully  implement  the  NAGPRA; 

BE  IT  FURTHER  RESOLVED,  that  the  NCAI  further  requests  that  the  Nations 
Park  Service  dutline  it's  plan  to  administer  a  grant  program  for  Tribal  organizations 
eligible  for  funding  assistance  under  the  regulations  developed  by  the  National  Park 
Service. 

CF.RTIFICATION 

The  foregoing  resolution  was  adopted  at  the  1993  Annual  Convention  of  the 
National  Congress  of  American  Indians,  held  at  the  Nugget  Hotel,  in  Reno/Sparks, 
Nevada,  on  the  3rd  day  of  December  1993,  with  a  quorum  present. 


gaiashkibptff  President 


ATTEST: 


\g  Secretary 


Adopted  by  the  General  Assembly  during  the  1993  Annual  Convention,  November 
28-December  3,  1993,  Reno/Sparks,  Nevada. 


58 


TESTIMONY  OF  THE 

AMERICAN  INDIAN  RITUAL  OBJECT  REPATRIATION  FOUNDATION 

SUBMITTED  TO  THE 

SENATE  COMMITTEE  ON  INDIAN  AFFAIRS 

NATIVE  AMERICAN  GRAVES  PROTECTION  AND  REPATRIATION  ACT 

OVERSIGHT  HEARING 

DECEMBER  6,  1995 


The  American  Indian  Ritual  Object  Repatriation  Foundation 
(AIRORF) ,  located  in  New  York  City,  is  an  intercultural  partnership 
committed  to  the  return  of  sacred  objects  to  the  indigenous  peoples 
of  this  country  and  to  educating  the  public  about  the  importance  of 
repatriation.  As  a  resource  and  conduit  for  sacred  materials, 
AIRORF  has  handled  reguests  for  information  and  assistance  from 
American  Indian,  Alaskan  Native  and  Native  Hawaiian  individuals, 
families  and  tribes,  as  well  as  organizations,  museums,  private 
collectors,  commercial  enterprises,  concerned  individuals  and  the 
media. 

Obviously,  the  complete  and  successful  implementation  of  the 
Native  American  Graves  Protection  and  Repatriation  Act  (NAGPRA)  is 
critical  if  repatriation  efforts  are  to  succeed  and  AIRORF  is 
vitally  interested  in  NAGPRA  and  its  implementation.  Indeed,  in 
conjunction  with  the  National  Indian  Policy  Center,  AIRORF  is 
publishing  a  NAGPRA  Implementation  Manual  for  tribes  which  will  be 
available  early  next  year. 

There  is  no  doubt  that  NAGPRA  has  already  had  a  great  impact. 
Substantial  repatriation  has  occurred  both  under  the  Act  and, 
increasingly,  outside  of  the  Act.  For  example,  AIRORF  has 
specifically  assisted  in  return  of  objects  from  private  art 
collectors  —  activity  which  is  an  indirect  result  of  the  greater 


59 


public  consciousness  that  has  resulted  from  NAGPRA.  In  a  number  of 
instances,  museums  and  Indian  tribes  are  forging  new  cooperative 
relationships  and  Indian  people  have  far  more  information  about 
museum  collections  than  they  have  ever  had  previously. 

Nonetheless,  AIRORF  is  concerned  about  certain  obstacles  which 
have  the  potential  to  undermine  the  long-term  implementation  of 
NAGPRA.  It  is  those  obstacles  which  are  the  subject  of  this 
testimony. 

Our  concerns  fall  into  six  categories: 

1.  The  failure  of  both  the  Act  and  implementing  regulations 
to  adequately  protect  remains  from  intrusive  scientific  procedures, 
even  where  a  tribe  with  the  right  to  possess  those  items  objects. 

2.  The  substantial  delays  in  the  repatriation  process 
required  by  the  new  regulations. 

3 .  The  potential  for  the  repatriation  process  to  be  extremely 
costly  for  tribes,  as  illustrated  by  recent  repatriation  claims 
handled  by  the  Smithsonian. 

4.  The  failure  to  adequately  address  the  concerns  of  Indian 
tribes  who  are  not  recognized  by  the  Secretary  of  Interior. 

5.  Inadequate  funding  for  implementation. 

6.  The  future  treatment  of  cultually  unidentifiable  remains 
and  objects. 

The  Failure  to  Limit  Invasive  and  objectionable  Scientific  Study 

It  has  come  to  AIRORF 's  attention  that  some  museums  are 

conducting  intensive  and  intrusive  studies  of  remains  ostensibly  to 


60 


determine  or  confirm  their  cultural  affiliation.  This  has  occurred 
even  in  instances  where  a  tribe  that  has  a  likely  affiliation  with 
the  remains  based  upon  existing  information  has  objected  to  the 
study.  Such  studies  may  be  highly  offensive  to  tribes. 
Unfortunately,  however,  the  adopted  regulations  do  nothing  to  limit 
or  discourage  such  activities. 

Moreover,  in  terms  of  remains  and  cultural  items  still 
imbedded  in  the  ground,  the  recently  approved  regulations  will 
permit  extensive  studies  of  unearthed  materials  even  where  the 
tribal  right  to  possess  and  control  remains  and  items  is  clear 
immediately  upon  discovery.  The  written  plan  that  must  be 
developed  by  the  Federal  land  manager  under  the  regulations  assumes 
the  right  of  an  excavator  to  perform  various  analyses  in  regard  to 
the  items  unearthed  during  an  indeterminate  period  before  the 
remains  or  objects  are  disposed  of  in  accordance  with  the  custody 
section  of  the  regulations.  43  C.F.R.  10.5(e)(4),  (5)  and  (9). 
Since  43  C.F.R.  10.6  builds  significant  delays  into  the  process  of 
relinguishing  possession  of  remains  or  cultural  items  to  a  tribe 
even  where  the  tribe  with  the  reguisite  interest  is  clearly  known, 
a  tribe's  ownership  or  control  interest  will  not  prevent  excavation 
or  analysis  of  remains  and  items  that  may  be  offensive  to  the 
tribe. 

This  practice  of  some  museums  and  the  procedures  for  imbedded 
materials  in  the  regulations  are  not  consistent  with  the  protective 
intent  of  NAGPRA.  When  NAGPRA  was  enacted,  the  Senate  Indian 
Committee  Report  explicitly  stated  that  the  inventory  provision  did 


61 


not  "require  museums. . .to  conduct  exhaustive  studies  and  additional 
scientific  research  to  conclusively  determine. . .cultural 
affiliation."  In  fact,  NAGPRA  specifically  states  that  it  "shall 
not  be  construed  to  be  an  authorization  for  the  initiation  of  new 
scientific  studies  of  such  remains  and  associated  funerary  objects 
or  other  means  of  acquiring  or  preserving  additional  scientific 
information  from  such  remains  and  objects."  Rather,  NAGPRA's 
intent  was  merely  to  require  a  good  faith  effort  to  identify 
cultural  affiliation  based  upon  presently  available  evidence.  As 
stated  in  the  Senate  Report,  it  is  not  necessary  that  cultural 
affiliation  be  established  with  "scientific  certainty". 

Moreover,  in  terms  of  imbedded  remains  and  materials,  the 
Senate  Report  indicated  that  the  process  in  NAGPRA  was  designed  to 
provide  Indian  tribes  with  "the  opportunity  to  intervene  in 
development  activity  on  Federal  or  tribal  lands  in  order  to 
safeguard  Native  American  human  remains... or  objects. .. [and  in  the 
context  of  inadvertent  discovery]  30  days  in  which  to  make  a 
determination  as  to  appropriate  disposition  for  these  human  remains 
and  objects." 

Notwithstanding  this  clear  Congressional  intent  that  NAGPRA 
not  serve  as  the  impetus  for  scientific  study  of  remains,  it 
appears  that  the  inventory  process  is  having  that  very  effect  and 
that  there  is  great  potential  that  the  regulations  on  imbedded 
materials  will  also  encourage  more  scientific  study.  It  is 
essential  that  Congress  take  action  to  rectify  this  problem. 

At  a  minimum,  it  should  strongly  urge  the  Park  Service  to 


23-074  96-3 


62 


develop  and  circulate  an  advisory  memorandum  to  all  Federal  land 
managers  and  museums  indicating  that  scientific  study  of  remains  — 
particularly  those  that  are  likely  to  be  claimed  by  a  tribe  based 
upon  existing  evidence  —  should  be  kept  to  a  minimum.  In 
addition,  Congress  should  consider  amending  NAGPRA  to  place 
limitations  upon  scientific  studies  of  remains  and  cultural  items — 
at  least  where  a  tribal  claim  is  likely  based  upon  evidence 
existing  at  the  time  that  a  particular  scientific  study  is 
proposed. 

Repatriation  Delays  in  the  Regulations 
AIRORF  is  greatly  concerned  about  4  3  C.F.R.  10.10(b) (2)  of  the 
adopted  regulations.  This  section  appears  to  prevent  any 
repatriation  of  human  remains  and  associated  funerary  objects  until 
after  a  museum  fully  completes  its  inventory.  Such  a  restriction 
is  utterly  contrary  to  the  intent  of  the  Act  and  even  the  practice 
of  most  museums  since  the  Act  has  passed.  NAGPRA  provides  an 
independent  right  to  repatriation  aside  and  apart  from  repatriation 
rights  established  pursuant  to  an  inventory  and  explicitly 
disclaims  any  intent  to  limit  museum  authority  to  repatriate.  Yet, 
it  appears  that  limiting  museum  authority  to  repatriate  would  be 
the  result  of  this  regulation.  The  testimony  at  the  hearing 
indicated  that  73  museums  have  reguested  an  extension  of  time  for 
completion  of  the  inventory.  Moreover,  many  museums  who  have  not 
reguested  an  extension  have  nonetheless  not  completed  their 
inventories.  It  is  possible  that  this  provision  could  prohibit 
repatriation  in  the  case  of  all  of  these  museums. 


63 


AIRORF  urges  Congress  to  put  immediate  pressure  on  the  Park 
Service  to  clarify  the  meaning  of  this  regulation  if  it  does  not 
mean  what  it  appears  to  say  or  to  withdraw  this  provision  if  it 
does.  If  the  Park  Service  refuses,  Congress  should  immediately  act 
upon  an  amendment  to  NAGPRA  which  would  make  clear  that  inventory 
completion  is  not  a  prerequisite  for  repatriation. 
The  Excessive  Cost  of  Repatriation 

AIRORF  is  also  concerned  that  the  cost  to  tribes  of 
establishing  cultural  affiliation  and  obtaining  repatriation  of 
human  remains  and  cultural  items  can  become  excessive.  It  appears 
that  this  has  been  a  particular  problem  in  some  instances  with  the 
Museum  of  Natural  History  at  the  Smithsonian.  As  a  first  step  to 
addressing  this  problem,  AIRORF  recommends  that  Congress  sponsor  a 
dialogue  between  the  Smithsonian  and  interested  Indian  tribes  and 
national  organizations.  The  goal  of  this  dialogue  would  be  to 
determine  if  there  are  methods  or  procedures  which  can  be  developed 
to  streamline  the  repatriation  process. 

In  terms  of  the  Smithsonian,  its  separate  statutory  authority 
for  repatriation  may  be  part  of  the  underlying  problem  in  that  the 
Museum  of  the  American  Indian  Act  requires  cultural  affiliation  to 
be  based  upon  the  best  available  scientific  and  historical 
documentation,  but  includes  no  deadline  for  the  completion  of  an 
inventory  of  remains  and  funerary  objects.  Thus,  it  may  be  that 
subjecting  the  Smithsonian  to  the  provisions  of  NAGPRA  would  result 
in  a  more  streamlined  repatriation  process  within  that  institution. 
Nonetheless,  NAGPRA  itself  also  has  the  potential  to  give  rise  to 


64 


costly  disputes.  Thus,  this  proposed  dialogue  with  the  Smithsonian 
might  also  serve  to  identity  solutions  for  reducing  costs  which 
would  be  more  broadly  applicable  to  the  repatriation  process. 
Indian  tribes  unrecognized  by  the  Secretary  of  Interior 
The  definition  of  "Indian  tribe"  in  NAGPRA  refers  to  tribes 
eligible  for  services  provided  by  the  United  States,  not  merely 
Department  of  Interior  services.  In  its  original  guidelines  for 
implementing  NAGPRA,  the  Park  Service  recognized  that  in  addition 
to  the  list  of  federally-recognized  tribes  maintained  by  the  Bureau 
of  Indian  Affairs,  "other  Federal  agencies  also  offer  benefits 
specifically  to  Indians".  43  C.F.R.  10.2(b)(2),  issued  on  December 
4,  1995,  reguires  the  Secretary  to  prepare  a  list  of  Indian  tribes 
covered  by  the  Act.  The  Park  Service  has  indicated  that  this  list 
will  include  only  tribes  recognized  by  the  Secretary  of  Interior, 
notwithstanding  Abenaki  Nation  of  Missiguoi  v.  Hughes.  2  0  ILR  3001 
(D.Vt.1992)  which  interpreted  NAGPRA  in  accordance  with  the  broader 
approach  recognized  in  the  earlier  guidelines. 

AIRORF  agrees  with  the  Chairman  of  the  Standing  Rock  Sioux 
Tribe  that  NAGPRA  should  protect  those  tribes  which  are  not 
recognized  by  the  Secretary  of  Interior,  but  which  nonetheless 
"maintain  a  responsibility  toward  their  ancestors  and  their  items 
of  sacred  and  cultural  patrimony."  Congress  should  urge  the 
Secretary  of  Interior  to  include  all  tribes  which  receive  funding 
from  any  federal  agency  on  the  list  which  he  is  developing  pursuant 
to  the  regulations  and  take  appropriate  legislative  action  if  the 
Secretary  fails  to  do  so. 


65 


The  need  for  adequate  federal  funding 
Numerous  witnesses  at  the  hearing  expressed  their  concern  that 
inadequate  funding  could  thwart  the  efforts  of  museums  to  comply 
with  NAGPRA  and  limit  the  ability  of  tribes  to  take  advantage  of 
the  opportunities  that  the  Act  provides.  In  the  five  years  since 
NAGPRA  was  enacted,  AIRORF  has  observed  a  significant  change  in  the 
relationship  between  museums  and  Native  Americans  —  tension  has 
often  given  way  to  a  more  understanding,  cooperative  relationship 
as  NAGPRA-prompted  interactions  have  taken  place.  It  would  be 
tragic  if  this  unique  intercultural  opportunity  were  to  be  lost  due 
to  a  lack  of  funds  to  implement  this  landmark  legislation.  Thus, 
we  support  the  requests  for  $10  million  for  NAGPRA  funding  made  by 
a  number  of  the  witnesses  at  the  hearing. 

The  future  treatment  of  culturally  unidentifiable  remains 
AIRORF  fully  endorses  the  NAGPRA  Review  Committee's 
preliminary  recommendation  that  " [u] ltimately,  decisions  about  what 
happens  to  the  [culturally  unidentifiable]  remains  of  Native 
American  individuals  from  anywhere  in  the  United  States  and 
associated  funerary  objects  should  rest  in  the  hands  of  Native 
Americans."  The  inclusion  of  associated  funerary  objects  in  its 
proposal  is  a  particularly  welcome  and  important  part  of  the 
recommendation  by  the  Review  Committee.  AIRORF  urges  Congress  to 
provide  such  legislative  authority  as  may  be  needed  to  effectuate 
this  worthwhile  goal. 

AIRORF' s  board,  staff  and  consultants  have  a  great  deal  of 


66 


expertise  in  the  field  of  repatriation  and  include  traditional 
Native  Americans,  social  science  and  legal  experts  and  individuals 
with  lengthy  and  diverse  museum  experience.  AIRORF  would  be  more 
than  happy  to  share  this  expertise  with  the  Senate  Committee  and 
work  with  the  Committee  in  any  way  that  the  Committee  might  find 
helpful. 

AIRORF  is  greatly  appreciative  of  the  Committee's  ongoing 
interest  in  ensuring  that  the  NAGPRA  is  fully  and  successfully 
implemented. 


67 


TESTIMONY  OF 

CECJL  F.  ANTONE,  LIEUTENANT  GOVERNOR 

GILA  RIVER  INDIAN  COMMUNITY,  ARIZONA 

BEFORE  THE  SENATE  COMMITTEE  ON  INDIAN  AFFAIRS 

REGARDING  THE  NATIVE  AMERICAN  GRAVES  PROTECTION  AND 

REPATRIATION  ACT 

DECEMBER  6, 1995,  WASHINGTON,  D.C. 

The  Gila  River  Indian  Community  (the  "Community")  is  honored  to  provide 
testimony  before  the  Senate  Committee  on  Indian  Affairs  on  the  implementation  of  the  Native 
American  Graves  Protection  and  Repatriation  Act  ("NAGPRA").  I  first  express  my  personal 
thanks  and  the  appreciation  of  the  Community  to  Senator  McCain  and  Senator  Inouyc  for  their 
dedication  and  devotion  in  causing  the  passage  of  NAGPRA.     Indian  tribes  now  have  the  legal 
authority  to  repatriate  their  cultural  and  spiritual  items.  The  Community  is  especially  thankful  for 
the  authority  because  Pimas  and  Maricopas  of  the  Community,  in  compliance  with  our  respective 
traditions,  feel  every  effort  must  be  made  to  repatriate  our  ancestors  to  their  homeland. 

The  Community,  over  the  last  three  years,  has  received  more  than  150  letters 
from  various  museums  and  federal  agencies  regarding  the  disposition  of  collections  as  required  by 
the  Act.  There  is  an  obvious  need  for  the  regulations  mandated  by  NAGPRA  to  be  promulgated 
as  Indian  Tribes  throughout  the  United  States  are  now  grappling  with  the  sometimes  complex 
repatriation  issues.  The  Community  and  other  O'Odham  tribes,  the  Salt-River  Pima-Maricopa 
Indian  Community,  the  Ak-Chin  Indian  Community,  and  the  Tohono  O'Odham  Nation  have 
developed  pragmatic  and  effective  understandings  and  agreements  with  federal  agencies  for 
consultation  and  mediation  of  specific  archeological  properties.  Our  most  recent  agreement  was 
with  the  United  States  Air  Force  and  involved  funerary  objects  and  human  remains  on  the  land 
where  Williams  Air  Force  Base  was  formerly  located.  The  closure  of  Williams  Air  Force  Base 


68 


Testimony  of  Cecil  F.  Antone,  LL  Governor  Page  2  of  3 

Gila  River  Indian  Community 


near  our  Reservation  caused  us  to  act  to  protect  the  funerary  objects  and  remains    We  recognize 
that  NAGPRA  has  not  been  fully  implemented  and  we  urge  this  Committee  make  every  effort  to 
cause  the  complete  implementation  of  NAGPRA. 

The  Community  does  have  a  positive  history  and  experience  in  repatriation  of 
human  remains  and  funerary  objects.  This  has  occurred  through  our  efforts  and  in  accordance 
with  the  laws  of  Arizona.    Since  1989,  the  four  O'Odham  tribes  have  reburied  more  than  3,000 
ancestors.  The  Community  has  established  a  relationship  with  the  Arizona  State  Museum  based 
on  mutual  respect  and  this  has  resulted  in  a  high  degree  of  cooperation  in  the  repatriation  of 
human  remains  and  funerary  objects.  However,  one  of  the  difficulties  that  Indian  tribes  face  is 
the  lack  of  physical  resources  to  house  collections  as  the  collections  are  transferred  and  received 
from  museum  institutions  and  federal  agencies.  Federal  funds  were  not  identified  in  NAGPRA 
and  the  current  restrictions  on  federal  funding  makes  it  difficult  to  develop  and  construct  the 
necessary  facilities  to  house  collections.  It  is  apparent  that  Indian  tribes  must  develop 
partnerships  with  federal  and  state  agencies.  The  Community  has  taken  steps  to  enter  into 
cooperative  agreements  with  governmental  entities.  For  instance,  in  November  1995,  the  Bureau 
of  Reclamation  agreed  to  develop  and  construct  a  repository  to  house  all  Central  Arizona  Project 
archeological  material  collected  during  the  construction  of  the  Project.    The  repository  will  be 
located  on  Community  lands.  As  part  of  our  commitment  to  this  agreement,  the  Community  will 
be  utilizing  its  resources  to  support  and  fund  this  repository. 

We  are  deeply  thankful  for  the  opportunity  NAGPRA  has  presented  so  that  we 
arc  able  to  maintain  our  cultural  traditions    We  also  intend  to  continue  to  maintain  the 


69 


Testimony  of  Cecil  F.  Antone,  Lt.  Governor  P»ge  3  of  3 

Gila  River  Indian  Community 

relationship  and  partnership  with  federal  agencies.  The  Pimas  and  Maricopas  of  the  Community 
view  NAGPRA  and  its  eventual  implementation  as  an  extremely  significant  step  in  assisting  Indian 
nations  to  properly  care  for  their  ancestors.  This  is  an  important  step  in  assuring  cultural  stability 
for  generations  to  come. 

I  thank  you  for  this  opportunity  to  comment  on  implementation  efforts  regarding 
NAGPRA,  and  I  will  respond  to  any  questions  you  may  have. 


70 


'Keepers 
of  the 


'Treasures  340°  sp,,na")  Ro,tJ 

Suite  4 
j+x  Anchorage.  Alaska 

*$*  99503 

Ph.  907  •  258  •  2844 
F*.  907.  258  -4373 


Alaska 


STATEMENT  TO  THE  UNITED  STATES  SENATE  COMMITTEE  ON  INDIAN  AFFAIRS 

REGARDING  THE  STATUS  OF  IMPLEMENTING  THE 

NATIVE  AMERICAN  GRAVES  PROTECTION  AND  REPATRIATION  ACT 

December  18,  1995 

Prepared  by  Ellen  Bielawski,  Ph.D. 

Executive  Director  and  NAGPRA  Project  Director 

and  Directors  of  KTA 


Note:  The  author  is  not  a  native  person,  but  has  written  as  "we", 
having  been  directed  to  prepare  this  summary  of  the  board's 
comments  and  her  archaeological  and  museum  experience. 


Keepers  of  the  Treasures  Alaska  (KTA)  is  an  Alaskan  native 
non-profit  organization  supporting  the  efforts  of  Alaskan  native 
people  to  reclaim,  revitalize  and  perpetuate  their  diverse  cultures 
and  languages.  KTA' s  Board  of  Directors  is  comprised  of  one 
representative  of  each  of  the  12  regions  established  under  the 
Alaska  Native  Claims  Settlement  Act,  one  at -large  member,  and  one 
ex  officio  liaison  member  of  the  national  Keepers  of  the  Treasures. 
KTA  members  represent  all  of  Alaska's  native  and  non-native  people 
and  live  all  over  the  state. 


71 


Currently  KTA  holds  a  grant  from  the  Administration  for  Native 
Americans  to  assist  four  (4)  Alaskan  village  councils  undertaking 
repatriation. 

We  submit  these  comments  in  support  of  some  of  the  testimony 
presented  on  December  6,  1995,  with  the  addition  of  specifically 
Alaskan  perspectives  on  NAGPRA. 

KTA  urges  Congress  to  appropriate  at  least  $10  million  in 
FY1996  for  implementing  NAGPRA.  In  Alaska,  NAGPRA  and  the  required 
summaries  and  inventories  went  to  organizations  unprepared  to  act 
on  the  opportunity  NAGPRA  represents  for  returning  ancestral 
remains  and  healing  the  wounds  caused  by  their  removal .  In  many 
cases,  there  are  no  human  nor  financial  resources  to  write  the 
grant  proposals  required  for  accessing  NAGPRA  funds  available  to 
federally-recognized  tribes  and  organizations.  KTA  undertook  to 
assist  villages  in  implementing  NAGPRA  precisely  because  so  many 
villages  in  Alaska  lack  even  the  resources  to  access  the  funds  that 
would  allow  them  to  learn  about  and  implement  NAGPRA. 

It  should  also  be  recognized  that  while  costs  are  high 
everywhere,  there  are  generally  much  higher  in  Alaska  than  in  the 
Lower  48  states.  Under  NAGPRA,  native  people  must  visit  some 
museums  to  work  with  museum  staff  on  repatriation.  Most  of  th^ 
villages,  and  the  burial  grounds  from  which  ancestral  remains  were 
taken,  are  not  accessible  by  road.  Distances  between  museums  and 
villages,  even  within  the  state,  are  long.  This  means  that  any 
travel  associated  with  NAGPRA,  as  well  as  the  shipment  of 
repatriated  remains  and  objects,   will   be   more   costly   than 

2 


72 


elsewhere.  Similarly,  costs  of  communication  are  higher  than 
elsewhere,  by  phone,  fax,  e-mail  and  so  on.  Because  many  Yupik  and 
Inupiat  Elders  speak  only  their  native  language,  interpretation 
costs  are  substantial,  especially  when  addressing  words,  concepts 
and  issues  that  do  not  translate  comfortably  across  the  cultural 
boundaries  between  museum  staff  and  native  people. 

KTA  also  strongly  suggests  that  Congress  address  the  question 
of  native  peoples  and  organizations  not  formally  recognized  by  the 
federal  government.  In  the  words  of  an  Alaska  Keeper:  "it  didn't 
matter. . .when  the  human  remains  of  non-f ederally  recognized  Indian 
tribes  were  taken... it  irks  me  that  living  human  beings  are 
technically  not  in  existence  merely  because  the  U.S.  Government 
does  not  recognize  them."  We  feel  that  carrying  out  repatriation 
only  through  federally-recognized  entities  goes  against  the  spirit 
of  NAGPRA,  and  the  empowerment  and  healing  it  is  to  foster  among 
native  americans. 

In  Alaska,  the  Corporations  created  under  ANCSA  are  federally- 
recognized.  Both  regional  and  village  corporations  have  received 
abundant  museum  summaries  and  inventories.  Yet  for  many,  the 
initiative  required  to  implement  NAGPRA  is  far  outside  the  scope 
and  interests  of  corporate,  profit-making  activities.  The  parallel 
non-profit  native  organizations  are  chronically  overburdened  and 
always  struggling  to  stay  in  touch  with  their  members  across  large 
areas.  NAGPRA  needs  to  be  addressed  both  regionally  and  locally.  In 
some  cases,  local  cemeteries  were  excavated  and  large  numbers  of 
individual  remains  taken.  In  others,  the  summaries  and  inventories 


73 


indicate  very  dispersed  remains  with  affiliation  by  region  at  best. 
At  present,  however,  there  is  little  NAGPRA  activity  dedicated  to 
integrating  regional  and  local  cases.  The  emphasis  on  federally- 
recognized  tribes  works  against  the  notion  of  everyone  in  a  region 
working  together  to  repatriate  large,  discrete  collections  of  human 
remains  and  remains  from  across  and  region,  often  more  widely 
dispersed  throughout  museums.  At  present  NAGPRA  and  implementation 
funding  emphasize  federally-recognized  entity  consultation  with 
museums;  a  truer  treatment  of  our  ancestors  would  recognize  that  we 
are  all  their  descendants  and  that  we  should  work  together  on 
bringing  our  people  home.  This  need  is  especially  great  concerning 
the  repatriation  of  culturally  unafilliated  remains  (see  Alaska 
Federation  of  Natives  Resolution  95  -  59) . 

We  are  very  concerned  that  some  museums  and  institutions 
(including  the  Smithsonian  Institution  which,  while  not  subject  to 
NAGPRA,  should  be)  continue  to  engage  in  studies  of  human  remains. 
Our  experience  suggests  that  museums  and  institutions  may  attempt 
to  carry  out  work  with  our  ancestors'  remains  that  they  call 
documentation  and  we  know  is  at  best  against  our  expressed  wishes 
and  at  worst  profane  (See  Alaska  Federation  of  Natives  Resolution 
95-61,  attached) . 

Parallel  to  the  power  the  federal  government  holds  to 
recognize  the  tribes  and  organizations  with  repatriation  rights 
through  NAGPRA  is  the  power  museums  and  institutions  hold  under 
NAGPRA  to  determine  what  is  sacred.  This  can  only  be  twermined  by 
Native  American  spiritual  leaders.  While  NAGPRA  is  not  directly 


74 


concerned  with  sacred  places,  only  sacred  and  religious  objects,  it 
does  apply  to  tribal  and  federal  lands.  Greater  protection  of 
Native  American  graves  and  otherwise  sacred  places,  is  required 
outside  of  tribal  and  federal  lands.  For  example,  one  multi- 
jurisdictional  dispute  currently  allows  marked  native  graves  to 
serve  as  lawn  ornaments  ostentatiously  visible  to  tourist  and  local 
traffic  along  a  heavily  travelled  highway  just  north  of  Anchorage. 

Museums  and  other  institutions  are  allowed  to  access  to  tribal 
confidential  information,  but  no  controls  are  in  place  to  keep  such 
information  confidential.  This  is  common  sense  violation  of  a 
fundamental  intellectual  property  right.  The  information  belongs  to 
the  tribes,  and  anyone  desiring  or  requiring  use  of  it  must  do  so 
only  in  accordance  with  the  wishes,  agreement  and  informed  consent 
of  the  people  whose  knowledge  it  is . 

We  thank  you  for  the  opportunity  to  address  these  concerns  in 
testimony  before  the  Committee.  We  trust  that  you  will  address 
these  and  the  concerns  of  others  brought  to  your  attention.  In  the 
attempt  to  balance  the  budget,  Congress  seems  to  look  primarily  at 
dollars,  cash  flow,  interest  payments,  and  debt.  The  United  States, 
and  the  museum,  ethnology,  anthropology,  medical  and  other 
scientific  and  arts  communities  owe  a  huge  debt  to  American 
Indians,  Native  Hawaiians  and  Alaskan  Natives.  This  cannot  be  paid 
simply  in  dollars.  If  NAGPRA  is  adequately  supported  and  carried 
out  with  goodwill  and  the  continued  spiritual  guidance  that  brought 
us  this  far,  the  healing  can  begin  in  earnest.  Only  in  working 
together  towards  healing  the  relationship  between  native  people  and 
the  United  States  will  the  debt  be  forgiven. 


75 
aiaska  rosntATXON  or  mayxvss 

IMS   JUQTOJO.   COMVBMTIO* 
KKSOLOTIOH   95-61    .. 


TITLE:  ORGXHQ       THB       KATCOHAJL        MMBBM       07       — w—       m  i  iwm 

SKTraeOBlAH    IK8TITCTS   TO  ABSPBCT  HDAT&XaTXOH  CUnMW 


MOBBMi  wa,  ctM  Mbm  of  fetal  Alaska  aaeiva  LussniHty. 
inrokincr  tha  divlaa  blnssiaa  of  tha  Cnttor  oven  our 
af f OCfea  and  parposs  to  support  tha  ladlonnoos  paopl— 
of  Alaska  la  mclaialno,  wHtiHring  and  parpataafeiag 
oar  ai'varaa  oalfeuraa  and  lanQuaaasf  and. 


,    of    tha    Alaska    natlvt 
support   and   assist    tha   prasarvation, 
raritallsation     of     tha     past     and 
llfanays  uaiqua  to  hnarloan  Indians 
aativa  ■swaiiansi  and. 


moBUM*     Public    haw   101-188.    otharwlaa   knoan   as    tbs "Jf***0/1** 
of  tha  las  1 1  it  1 1  Indian  Aot  stataa  la  fasti  wi  11 


providing  for  tha  torsnfcory.    - 

of  mdian  Manna  Ananias  and  X**^*«??W  «*•«*•  J» 


thn^oasasslon  of  tha  — ithsonian  Institution  that  tha 


■aithsonian  -...upon  tha  monaet  «T tha  _ 
sash      Individual      or      of      tha      *****  _*g*^^ 
aspaditiously   ratarn    snob    i  ass  Ins    Ituiiatnar  wicn   aur 
assoeiatad    fanarary    objaota)     to    tha    dnsoondants    or 

trlha"!  and 


lansAft  it  is  aridant  that  par  tha  »tJnna3  *****  9LmSSSi 
History,  polioy  antitlnd  ■Poeaas  ntsH  ™J**,**n 
skalatal  Aonains-  datad  JUna  17,  J*'\  ***%*£  £ 
astabllah  prooadnras  for  ldantlfyinc  tha  Pl«c«_«; 
orioin  of  huana  ranaias,  has  iastaad  allowad  additional 
Z37  'I  ^ZZZ.  TsaiTir  raoardlass  of  ahsthsr  thosa 
^S^JS^Sx^l^^^SS!^  to  origin  and 
plana  for  purpose*  of  rapatriationi  and. 


it  la  laonahant  apoa  aa  as  tha 
•aoastral  ranaias  -bauson-  at  tha 
natural   history  to 
aathoritiaa  and  liaaal  _ 
additional  duuuaaiifrsHmi  of 


76 


ALASKA    P8DBRATION   OP   SATrVHS 

1995  MURAZi   COMVaWTXOMT 

RKSOLOTICar   95-59 


TITLB:  REPATKIATIOR     AMD      DX8VOSXTXCM     OT     OMXBBRirXBD      ALASKA 

BDMAM  REMAINS   ABO   ASSOCIATE)   PTFKBSABT  OBdSCTfl 


wa,  tha  anbtri  of  tha  Alaska  Sativa  oowwmlty, 
tnvolduoo  tha  di-riaa  blaaslap  of  tfca  Cxaatozr  wpon  our 
af forts  and  pnrpoaa  to  aaaport  tte  iadlosaoas  paoplaa 
of  AUtkt  la  raolaialocr,  ra^taliaiag  atf  porpataatlaa 
oar  dlToroo  ealtums  and  laagnasas I  sad* 

as  MM— Hi ■!  ■  osT  tno  alnate  aatlwa  mwmfty  %*•  will 
— Mpaact  and  assist  tte  prsa«r»ation,  aaiwrawanoa  and 
rawitaliaation  of  tte  past  «ad  pnmk  cultural 
lifaways  aaloao  to  Anarlean  Indians,  Alaska  aatlvas  aad 
Htetiv*  wawallans;  aad. 

nadar  Public  Xaar  10l-«0i  tha  aatlva  ansHrun  Ocavaa 
rrotactlon  aad  — parrlarton  act  (Bflm)  sad J"**1*  Ji* 
101  .us  tte  Kationai  —  ana  of  tte  iwriniii: Indian  act, 
tha  1  ml  I  ■Minim  in— mil  1—  of  Alaska  will  bar*  tha 
opportunity  to  datamina  tha  final  dlaposifion  of  any 
or  all  nntdonftflad  aaoostaal  teaam  r iai Ins,  aloao  with 
any  funerary  ofcjooto  loeatad  la  araauaa,  onlrarsitlaa^ 
oollosos  aad  oollaotloaa  thanaateat  tte  Oaltad  Itatasi 


m*t    that;    tte    Alaska    Vadoratlon    of 
Katies  supports  tte  fomation  of  a  statewide  ******* 
ttoa  to  explore  aaaas  for  tte  flaal  dlaposltloa  of 
uaidentlf  lad    Alaska    and/or    mini  ■las  11    aaoastral 


.   fetefc    tte   II rr1—   Vaoazatloa  of   natives, 
.  oa^wpWtte  keepers  of  tte  tteaeuraa*  Alaska  to 
aerwe  aa  liaison  with  tte  atatowlda  steering  oonaittee. 


n    „   nmm  naenMMa   that    tte    Alaska   FadairaMnn    of   ■atlTsa, 

"  "  ^^,^S7apoTotte7  Alaska  aeel*.  orounlaetlen.  to 
»*il.wZ«Mt  «ni  nartiotoato  in  tha  planning  and 
££££*£?£  tte    Sal'^aPOSltlon^tte    h~1u 


of  tte  «reesures*  Alaska 


77 


HOW     TttBREFO&X     BJE      IT     RBSQXaVEXI;       that      feh-8      M*  *■*'—      F«d»n»tioa     of 

Hativas  coarsntiao  call  upon,  all  available  reaourcas, 
including,  but  act  Halted  to.  tna  alaalea  Goocrx'esaional 
Delegation  to  aaalat  in  in*  ti  tut  Ana  atoange  within  the 
Repatriation  Office  o*  the  ami  thaonian ' a  Mational 
Musaua  of  natural  Hlatery  that  zaapaota  claimants ' 
vriahe*  for  the  tn  aw  feat  o*  the  reemine. 

■QBKXfRD  SYx   Kaayaira  of  the  Tvaaam aa*  Alaaka 

COaMIlTMt  Bill  IMIIWHI  IflMi      Do  ?aaa  ..-••--•-^ 

coavmerriow  actxcbti 


78 


TESTIMONY  OF  ELIZABETH  BLACKOWL,  PRESIDENT  OF 

THE  PAWNEE  TRIBE  OF  OKLAHOMA,  BEFORE  THE  SENATE 

INDIAN  AFFAIRS  COMMITTEE,  DECEMBER  6, 1995 

Good  morning,  Chairman  McCain  and  respected  members  of  the  Indian  Affairs  Committee.  My  name 
is  Elizabeth  Blackow!  and  I  am  the  President  of  the  Pawnee  Tribe  of  Oklahoma.  Thank  you  for  the  opportunity 
to  offer  testimony  before  this  committee  on  behalf  of  the  Pawnee  Tribe  regarding  the  implementation  of  the 
Native  American  Graves  Protection  and  Repatriation  Act  of  1990  ("NAGPRA"). 

NAGPRA  ranks  among  the  most  important  Native  American  human  rights  laws  ever  enacted.  NAGPRA 
establishes  national  guidelines  and  procedures  for  federally  funded  museums  and  federal  agencies  to  repatriate 
important  cultural  items  to  appropriate  Native  American  tribes  and  people.  Mr.  Chairman,  NAGPRA  can  and 
has  worked.  Since  1 989,  the  Pawnee  Tribe  has  repatriated  and  reburied  well  over  one  thousand  ( 1 ,000)  human 
remains  and  funerary  objects  under  state  and  federal  laws. 

The  reinterment  of  our  ancestors  in  accordance  with  Pawnee  traditions  has  been  an  important  activity 
for  our  entire  Tribe.  For  example,  Senator  McCain,  we  were  deeply  moved  by  your  presence  at  the  ceremonies 
held  at  Ft.  McNair  last  June,  when  the  remains  of  six  Pawnee  Scout  U.S.  Army  veterans  were  repatriated,  with 
your  assistance,  from  the  National  Museum  of  Natural  History  for  reburial  in  Nebraska  with  full  military  honors. 
The  repatriation  and  reburial  of  these  war  dead  with  the  assistance  of  the  Defense  Department's  Office  of 
Casualty  Affairs  gave  the  true  meaning  of  NAGPRA  to  the  Pawnee,  Arikara  and  Wichita  people  who  attended 
the  reburial  services  in  Genoa,  Nebraska;  and  we  continue  to  appreciate  your  efforts  to  see  that  those  veterans 
were  laid  to  rest  with  the  dignity  and  honor  that  they  deserved. 

However,  NAGPRA  implementation  efforts  are  expensive  and  time-consuming  and  could  be  improved 
by  our  nation  based  upon  five  years  of  experience  with  the  important  law.  Indeed,  similar  to  the  civil  rights 
legislation  and  policies  of  the  1960's  which  are  still  being  implemented  today,  NAGPRA  will  take  years  for  our 
Nation  to  fully  implement,  because  NAGPRA  addresses  a  widespread  national  problems.  Hopefully,  through 
the  good  will  efforts  of  this  Committee,  Indian  tnbes  and  museums,  we  can  strive  to  improve  implementation 
efforts. 

Toward  that  end,  I  highly  commend  the  Committee  for  its  hard  work  in  passing  NAGPRA  in  1990  and 
for  holding  this  oversight  hearing  in  1995  to  see  how  the  law  is  working  from  the  perspective  of  affected  Indian 
Tribes  and  museums.  I  hope  my  testimony  regarding  Pawnee  experiences  and  recommendations  will  be  of 
assistance  to  the  Committee  and  to  the  museum  and  Indian  communities. 


79 


My  testimony  covers  three  areas:  First,  I  will  discuss  the  background  of  Pawnee  repatriation  efforts 
since  1989.  Second,  I  will  raise  some  concerns  or  problems  which  our  Tribe  experienced  in  implementing 
NAGPRA.  And,  third,  I  will  respectfully  offer  some  recommendations  to  address  the  concerns  which  we 
encountered,  for  the  Committee's  consideration. 

BACKGROUND  OF  PAWNEE  NAGPRA  IMPLEMENTATION  EFFORTS. 

Like  many  Indian  Tribes,  the  Pawnee  Tribe  was  historically  subjected  to  massive  disturbances  of  tribal 
cemeteries  and  burial  grounds.  Additionally,  many  important  Pawnee  cultural  items  or  patrimony,  such  as 
important  communally  owned  ceremonial  bundles,  left  tribal  hands  over  the  years  -  especially  in  1 892  -  1934 
period  when  traditional  Indian  religions  were  banned  by  the  Federal  Government  --  under  questionable 
circumstances.  Much  of  this  sad  history  was  presented  to  this  Committee  in  1989  and  1990  in  support  of  the 
passage  of  NAGPRA  and  the  National  Museum  of  the  American  Indian  Act  ("NMAIA")  and  will  not  be  repeated 
in  my  testimony  today.  Needless  to  say,  the  Pawnee  Tribe  joined  Indian  country  in  strongly  supporting  the 
passage  of  NAGPRA  and  NMAIA,  because  these  were  greatly  needed  laws  to  protect  the  religious  sensibilities, 
equal  protection  and  property  rights  of  the  Pawnee  people. 

Since  1989,  the  Pawnee  Tribe  has  been  heavily  involved  in  repatriation  and  reburial  activities  under  state 
and  federal  repatriation  laws.  Almost  eleven  hundred  (1,100)  deceased  tribal  ancestors  and  associated  funerary 
objects  have  been  reburied  to  date  in  four  separate  reburial  ceremonies  conducted  in  our  aboriginal  homeland 
of  Kansas  and  Nebraska.  Because  of  the  large  scope  and  complex  nature  of  these  efforts,  the  Pawnee 
government  established  a  Repatriation  Committee  to  work  with  tribal  members,  elders,  experts,  legal  counsel 
and  museums.  Our  efforts  have  been  supported  by  the  legal  work  and  experts  of  the  Native  American  Rights 
Fund  (NARF:)  without  which  the  Tribe  would  not  have  been  able  to  accomplish  these  tasks. 

While  repatriation  is  an  expensive  and  time  consuming  task  for  our  hard-pressed,  impoverished  tribal 
government,  the  Pawnee  Tribe  has  deeply  appreciated  its  opportunity  to  successfully  carry  out  this  work,  because 
of  the  extreme  importance  of  reburying  our  dead. 

Mr.  Chairman,  let  me  just  briefly  summarize  the  four  reburial  experiences  of  the  Pawnee  Tribe  since, 
1989,  prior  to  sharing  our  concerns  and  recommendations.  The  first  three  reburials  occurred  under  state  laws; 
and  the  fourth  reburial  occurred  under  NAGPRA  and  the  NMAIA  which  my  testimony  and  recommendations 
will  focus  on. 


80 


As  to  the  state  law  repatriations,  the  first  took  place  in  the  Spring  of  1990,  when  the  Pawnee,  Ankara 
and  Wichita  people  reinterred  approximately  170  common  ancestors  (dating  from  AD.  1000  to  1400)  in  Salina, 
Kansas,  pursuant  to  a  special  Kansas  state  law.  Later  in  1990,  the  Tribe  reburied  approximately  400  Pawnee 
Indians  (dating  from  AD.  1550  to  1875)  in  a  cemetery  at  Genoa,  Nebraska,  under  the  provisions  of  the  Nebraska 
Unmarked  Burial  Sites  and  Skeletal  Remains  Protection  Act  of  1989  (Neb.  Rev.  Stat.  Sees.  12-1 209-1 2 11).  The 
third  reburial  occurred  in  1991,  when  the  Tribe  reburied  about  125  Pawnee  Indian  (dating  from  A. D.  1000  to 
1400)  near  McCook,  Nebraska.  These  dead  had  been  in  the  custody  of  the  Nebraska  State  Historical  Society 
and  were  repatriated  and  reburied  under  the  provisions  the  Nebraska  state  law.  All  of  these  state  law  reburials 
were  based  upon  tribal  repatriation  claims  which  pre-dated  the  passage  of  NAGPRA. 

The  fourth  reburial  occurred  in  June  of  1995,  when  the  Pawnee,  Arikara  and  Wichita  people  reburied 
approximately  400  human  remains  and  associated  funerary  objects  in  a  mass  grave  near  Genoa,  Nebraska, 
according  to  tribal  rites  and  with  military  honors  for  some  of  the  deceased  who  were  U.S.  Army  veterans.  These 
dead  were  repatriated  from  four  state  and  federal  museums  under  the  provisions  of  NAGPRA  and  the  NMAIA. 
More  specifically,  three  hundred  and  seventy  (370)  human  remains  and  associated  funerary  objects  came  from 
the  Nebraska  State  Historical  Society;  twenty  eight  human  remains  (including  the  remains  of  six  U.S.  Army 
Scout  veterans)  were  from  the  National  Museum  of  Natural  History  and  National  Museum  of  Health  and 
Medicine  (Department  of  Defense);  and  two  human  remains  came  from  the  American  Museum  of  Natural 
History,  located  in  New  York. 

The  human  remains  from  the  National  Museum  of  Natural  History  (NMNH)  were  repatriated  under  the 
NMAIA  as  part  of  a  claim  that  was  initiated  in  1988  and  a  portion  of  which  is  still  pending,-seven  years  later, 
on  a  appeal  recently  decided  by  the  Smithsonian  Institution's  Native  American  Review  Committee  in  the  very 
first  appeal  before  that  Committee  under  the  NMAIA.  I  wish  to  highly  commend  Dr.  Russell  Thorton  and  the 
Native  American  Reveivv  Committee  for  its  timely,  efficient  and  even  handed  treatment  of  our  appeal  and  attach 
a  copy  of  it's  decision  to  illustrate  the  expense  and  complexity  of  repatriation  claims  under  the  NMAIA  from 
the  perspective  of  the  Pawnee  Tribe.  The  372  remains  from  the  other  three  museums  were  repatriated  under 
NAGPRA. 

All  of  the  above  efforts  resulted  in  the  reburial  of  the  desecrated  remains  of  tribal  relatives  in  accordance 
with  Pawnee  traditions,  which,  of  course,  relieved  great  stresses  among  our  people  and  afforded  us  with  the 
respect  and  satisfaction  of  laying  our  dead  to  rest  -  which  were  foremost  among  Congress'  goals  when  it  enacted 
NAGPRA  and  the  repatriation  provisions  of  the  NMAIA.  However,  achievement  of  these  intended  goals  was 


81 


done  only  at  great  financial  costs  in  the  face  of  unnecessary  delays  and  obstacles,  which  are  discussed  more 
below. 

For  example,  just  in  the  past  12  months  alone,  the  Native  American  Rights  Fund  spent  $51,456  63  on 
attorney  time,  expert  fees  and  travel  expenses  to  repatriate  the  28  human  remains  (including  U.S.  Army  veterans) 
from  the  National  Museum  of  Natural  History  and  to  win  the  attached  appeal  which  is  still  pending  at  the 
Smithsonian  under  the  NMAIA.  Moreover,  during  the  same  period,  NARF  was  also  forced  to  expend 
52120,869.83  in  legal,  expert  and  travel  costs  to  repatriate  the  370  remains  under  NAGPRA  from  the  Nebraska 
State  Historical  Society,  the  American  Museum  of  Natural  History  and  the  National  Museum  of  Health  and 
Medicine.  In  addition,  the  Pawnee  Tnbe  bore  at  least  $7,500  in  costs  and  expenses  associated  with  the  actual 
repatriation  and  reburiaJ  of  these  400  remains.  Of  these  $80,000.00  in  costs,  which  are  staggering  to  small 
Indian  Tribes,  the  Pawnee  Tribe  was  awarded  a  1995  grant  from  the  National  Park  Service  of  only  $7,500  to 
cover  a  part  of  the  reburial  expenses;  and  I  just  wonder  how  other  Tribes  are  able  to  implement  without  access 
to  NARF  or  other  resources? 

CONCERNS  AND  RECOMMENDATIONS. 

Based  upon  the  above  experiences  in  implementing  NAGPRA  and  the  related  federal  repatriation 
provisions  of  the  NMAIA,  the  Pawnee  Tribe  has  experienced  the  following  problems  or  concerns  and  offers 
accompanying  recommendations  for  each: 

1.  LACK  OF  FEDERAL  FUNDING: 

The  lack  of  federal  funding  seriously  hampers  tribal  repatriation  efforts.  The 
Pawnee  Tribe  has  applied  unsuccessfully  to  the  National  Park  Services  for 
appropriate  funding  in  the  past  but  was  denied.  The  sole  funding  received  was 
the  inadequate  $7,500  amount  in  1995,  for  which  we  are  extremely  grateful  in 
partial  relief  for  the  $80,000  which  was  expended  by  NARF  and  our  impoverished 
Tribe.  For  example,  our  Repatriation  Committee  estimates  the  need  for  at  least 
$70,000  per/year  for  staff,  consultants  and  travel  to  implement  potential 
NAGPRA  claims,  which  we  are  presently  unable  to  do.  We  are  not  alone  1 
understand  from  my  attorneys  that  in  FY  94  and  FY  95  the  National  Park  Service 
received  337  proposals  from  Tribes  and  museums  totalling  $30  million  dollars  for 
NAGPRA  implementation,  but  was  only  able  to  fund  83  grants  for  $4.3  million, 
which  leave  a  whopping  $25  million  dollar  gap. 


82 


This  gap  is  likely  to  increase  in  the  next  1 2  months  due  to  the  museum  inventory 
deadline,  which  will  spark  increased  NAGPRA  implementation  activities.  Thus, 
it  is  clear  that  funding  must  be  significantly  increased  to  implement  NAGPRA 
from  the  S2.3  million  dollars  that  is  proposed  at  the  present  time. 

RECOMMENDATION:  Because  even  the  best  laws  can  be  nullified  by  failure 
to  fund  necessary  implementation  measure,  1  strongly  recommend  full  tribal 
funding  for  NAGPRA  as  originally  intended  when  the  law  was  developed  and 
enacted,  in  the  amount  of  10  million  dollars  annually.. 


LACK  OF  NAGPRA  REGULATIONS: 

The  unexplained  failure  of  the  Secretary  of  the  Interior  to  promulgate  regulations 
to  implement  NAGPRA  by  November  16,  1991,  as  required  by  25  U.S.C.  301 1 
has  contributed  to  confusion,  delay  and  excessive  costs  for  Tribes  in 
implementing  this  law.  For  example,  some  of  our  delay  and  legal  cost  in 
repatriating  the  370  remains  from  the  Nebraska  State  Historical  Society  is 
attributed  to  confusion  about  the  Secretary's  powers  and  duties  to  publish  museum 
notices  of  intent  to  repatriate  in  the  Federal  Register  under  25  U.S.C.  3003(d). 
I  understand  that  on  the  eve  of  this  hearing  the  Secretary  has  or  will  publish  the 
final  rules  in  the  Federal  Register  and  our  attorneys  have  not  yet  had  the 
opportunity  to  review  or  analyze  them. 

RECOMMENDATION:  We  recommend  that  the  Committee  hold  the  record 
of  this  hearing  open  for  a  sufficient  period  in  order  to  afford  Tribes  with  the 
opportunity  to  offer  the  Committee  their  comments  on  the  adequacy  of  the  final 
regulations. 


EXCESSIVE  MUSEUM  DELAYS.  STUDIES  AND  "DOCUMENTATION" 
CAUSES  PROTRACTS  TRIBAL  CLAIMS  AND  INCREASES  TRIBAL  COSTS: 

The  seven  year  old  Pawnee  repatriation  claim  against  the  Smithsonian's  National 
Museum  of  Natural  History,  which  is  still  pending  under  the  NMA1A,  is  a  classic 
case  of  excessive  delays,  studies  and  "documentation"  which  has  resulted  in 
excessive  tribal  delays  and  costs  ($51,456.63)  in  NARF  attorney  time,  expert 
costs  and  travel).  In  this  case,  it  was  common  for  months  to  pass  before  tribal 
letters  were  answered.  The  NMNH  initially  stated  that  it  only  had  two  Pawnee 
remains.  Rather  than  accept  this  initial  finding,  the  Tribe  had  to  hire  its  own 
independent  consultants  (two  historians,  one  archivist,  an  archeologist,  NARF 
attorneys)  who  differed  from  the  museums's  experts.  The  Tribe's  experts 
subsequently  demonstrated  that  approximately  80  remains  are  properly  subject 
to  the  Tribe's  claim  --  including  six  U.S.   Army  veterans,  but  only  after 


83 


voluminous  and  expensive  work  in  rebutting  the  many  studies  conducted  by 
NMNH  staff  and  consultants. 

During  the  period,  NMNH  staff  conducted  radiocarbon  studies  of  Pawnee 
remains  housed  on  loan  at  the  museum  without  seeking  tribal  consent  or  giving 
notice  of  this  destructive  and  intrusive  study.  Outside  consultants  were  hired  by 
the  museum  without  tnbal  notice  or  input  who  conducted  voluminous  studies 
without  tribal  involvement,  including  full-blown  and  unnecessary  physical 
anthropological  studies  of  the  remains  that  entailed  all  sorts  of  measurements 
which  were  not  pertinent  to  the  claim. 

After  all  these  studies,  the  Tribe  was  still  forced  to  take  an  appeal  to  resolve  a 
dispute  over  a  portion  of  its  claim,  which  it  ultimately  won  in  the  attached 
opinion.  Had  the  Tribe  accepted  the  initial  museum  assessment  that  only  2 
Pawnee  were  in  its  collections,  the  Tribe  would  have  left  almost  78  ancestors  to 
languish  forever  in  museum  vaults.  It  is  clear  to  me  that  Indian  Tribes  must  be 
well  equipped  with  ample  legal  and  expert  resources  to  engage  in  protracted  work 
with  the  NMNH  or  face  the  prospect  of  losing  many  culturally  affiliated  ancestors 
who  should  otherwise  be  repatriated  to  the  Tribes  under  the  NMAIA. 

RECOiMMENDATIONS:  The  Committee  should  strongly  encourage  the  NMNH 
and  other  museums  with  similar  practices  to: 

1)  refrain  from  excessive  delays  (which  I  define  as  more  than  10 
days  after  receipt  of  a  letter  from  a  Tnbe)  in  corresponding  with 
Indian  Tribes. 

2)  refrain  from  conducting  excessive,  unduly  expensive  and  time 
consuming  new  studies  regarding  repatriating  claims,  especially 
full  blown  anthropological  studies  under  the  guise  of 
"documenting"  or  "inventorying"  the  remains  at  issue,  unless 
requested  or  agreed  to  by  the  Tribe. 

3)  meet  with  Indian  Tribes  for  the  purpose  of  identifying  better  ways 
to  streamline  and  expedite  claims  and  make  them  less  technical 
and  expensive  for  Tribes,  including  improved  consultation 
procedures. 

Mr.  Chairman  and  members  of  the  Committee,  this  concludes  my  testimony.  On  behalf  of  the  Pawnee  people, 

please  accept  the  gratitude  of  our  Tribe  for  your  past,  present  and  future  leadership  in  this  important  human 

rights  issue.  The  Pawnee  Tribe  stands  ready  to  assist  the  Committee  in  any  way  possible  as  it  continues  its 

review  and  assessment  of  federal  repatriation  issues.  Thank  you. 


84 


RECOMMENDATIONS  REGARDING  THE  DISPUTE  BETWEEN  THE  PAWNEE  TRIBE 

OF  OKLAHOMA  AND  THE  NATIONAL  MUSEUM  OF  NATURAL  HISTORY 

REPATRIATION  OFFICE  OVER  THE  STEED-KISKER  PHASE 

HUMAN  REMAINS  AND  FUNERARY  OBJECTS 


Submitted  October  10,  1995  to  Secretary  I.  Michael  Heyman 
by  the  Smithsonian  Institution  Repatriation  Review  Committee 


-ii^^^i  &  2J^^:^  LxJma.  (j.  [Um^ 


Russell  Thornton,  Chair  Andrea  A.  Hunter,  Vice  Chair 


<**a^*j\: 


Roger  Anyon  Lynne  Goldstein         Christy  G.  Turner  II 


85 


The  Smithsonian  Institution  Repatriation  Review  Committee  met 
at  the  Brown  Palace  Hotel  in  Denver,  Colorado,  on  September  14, 
1995,  to  consider  the  dispute  between  the  Repatriation  Office  and 
the  Pawnee  Tribe  of  Oklahoma  regarding  the  Steed-Kisker  Phase  human 
remains  and  funerary  objects  held  at  the  National  Museum  of  Natural 
History. 

The  remains  and  objects  in  question  represent  a  minimum  of 
fifty-three  (53)  individuals  (in  nineteen  [19]  sets)  and  one 
hundred  and.  seventy- eight  (178)  funerary  objects.  They  were 
obtained  from  three  archaeological  sites- -the  Steed-Kisker  site 
itself,  the  Nolan  C  "mound"  and  the  Shepherd  "mound" --in  Missouri 
during  1938  and  1939  by  Waldo  Wedel  of  the  Smithsonian  Institution. 
The  Steed-Kisker  Phase  dates  from  about  A.D.  1000  to  about  A.D. 
1250  . 

The  dispute  between  the  Pawnee  Tribe  of  Oklahoma  -and  the 
Repatriation  Office  concerned  the  cultural  affiliation  of  the 
Steed-Kisker  Phase  human  remains  and  funerary  objects.  The  Pawnee 
Tribe  had  requested  repatriation  of  the  human  remains  and  funerary 
objects  based  on  the  belief  that  a  preponderance  of  available 
evidence  indicated  that  the  Steed-Kisker  Phase  is  culturally 
affiliated  with  the  Central  Plains  Tradition  and  the  Pawnee  Tribe. 
The  Repatriation  Office  disagreed  with  the  Pawnee  Tribe  based  on 
the  belief  that  the  Steed-Kisker  Phase  could  not  be  assigned  a 
cultural  affiliation  until  further  studies  were  conducted. 


86 


3 
The  Pawnee  Tribe  was  represented  by  Walter  Echo-Hawk,  of  the 
Native  American  Rights  Fund  and  the  attorney  for  the  Pawnee  Tribe; 
Roger  Echo-Hawk,  a  consultant  for  the  Native  American  Rights  Fund 
and  the  Pawnee  Tribe;  Charles  Lonechief,  Chairman  of  the  Pawnee 
Repatriation  Committee  and  member  of  the  Business  Council  of  the 
Pawnee  Tribe;  and  Vance  Horsechief,  a  member  of  the  Pawnee  Tribe 
Repatriation  Committee.  The  Repatriation  Office  was  represented  by 
Thomas  Killion,  Director;  William  Billeck,  case  officer;  and  Lauryn 
Grant,  attorney  for  the  Smithsonian,  representing  the  Repatriation 
Office.   The  Repatriation  Review  Committee  was  represented  by  all 
five  members- -Roger  Anyon,  Lynne  Goldstein,  Andrea  Hunter,  Russell 
Thornton  and  Christy  Turner- -as  well  as  Gillian  Flynn,  Repatriation 
Review  Committee  coordinator. 

The   Committee   met  with  Pawnee   and  Repatriation  Office 

representatives  from  approximately  9:00  A.M.  to  12  noon  and  from 

approximately  1:00  P.M.  to  3:00  P.M.   During  this  period,  oral 

summaries  were  presented  by  both  sides  and  both  sides  resp'onded  to 

inquiries  posed  by  individual  Committee  members.   The  Committee 

then  met  in  an  in  camera  session  from  approximately  3:00  P.M.  to 

5:00  P.M.   During  this  period,  we  assessed  existing  evidence  as 

presented  orally  and  in  previous  written  documentation.   Based  on 

this   evidence,   we   formed  conclusions   regarding  the   cultural 

affiliation  of  the  Steed-Kisker  Phase.   We  then  formulated  three 

recommendations   to   Secretary   Heyman   (via   Provost   Hoffmann) 

regarding  repatriation  of  the  Steed-Kisker  Phase  human  remains  and 

objects.   Our  recommendations  were  unanimous  and  consensual. 


87 


4 
Recommendation  One 
The  Repatriation  Review  Committee  unanimously  recommends  that 
the  Steed-Kisker  Phase  human  remains  and  funerary  objects  be 
repatriated  to  the  Pawnee  Tribe  of  Oklahoma. 

The  Committee  concludes  that  a  preponderance  of  the  existing 
evidence  indicates  a  cultural  affiliation  of  the  Steed-Kisker  Phase 
with  the  Central  Plains  Tradition.   The  Central  Plains  Tradition 
has  been  previously  shown  to  be  affiliated  with  the  contemporary 
Pawnee,  as  represented  by  the  Pawnee  Tribe  of  Oklahoma.    (Such 
other  contemporary  groups  as  the  Arikara  of  the  Three  Affiliated 
Tribes  of  the  Fort  Berthold  Reservation  and  the  Wichita  and 
Affiliated  Tribes  are  also  affiliated  with  the  Central  Plains 
Tradition.)   We  conclude  that  evidence  derived  from  house-type, 
settlement  pattern,   geographic   location,   and  oral  traditions 
indicate  a  cultural  affiliation  of  the  Steed-Kisker  Phase  with  the 
Central  Plains  Tradition  and  the  Pawnee.  We  conclude  that  ceramic 
evidence  indicates  a  probable  cultural  affiliation  other  than  the 
Central  Plains  Tradition  for  the  Steed-Kisker  Phase.   We  conclude 
that   it   is  not  possible  to  establish  any  specific  cultural 
affiliation  for  the  Steed-Kisker  Phase  using  available  evidence 
derived  from  biological  data,  mortuary  practices,  subsistence,  or 
tools.  Thus,  of  the  nine  types  of  existing  evidence  examined,  data 
from   four   indicate   an   affiliation  with   the  .  Central   Plains 
Tradition,  data  from  one  indicates  an  affiliation  other  than  the 
Central  Plains  Tradition,  and  data  from  four  are  inconclusive  in 
establishing  affiliation.   This  is  a  clear  preponderance  of  the 


88 


5 
evidence  in  favor  of  a  Central  Plains  Tradition  cultural 
affiliation    for   the   Steed-Kisker   Phase. 

The  existing  evidence  we  examined  and  our  assessment  of   it  are 
presented   in  detail   below. 

Ceramics 

Ceramics  of  the  Steed-Kisker  Phase  are,  for  the  most  part, 
shell  tempered,  have  sunburst  designs  on  their  shoulders,  and  are 
jars  with  low  rims,  in  contrast  to  Central  Plains  Tradition 
ceramics  that  are  mostly  grit  tempered,  rarely  have  designs  on 
their  collars,  and  are  predominantly  low  to  high  rimmed  with 
thickened  lips  that  are  referred  to  as  collars.  Although  the 
shell  temper,  the  designs,  and  the  shape  of  Steed-Kisker  ceramics 
are,  on  the  whole,  much  more  like  Middle  Mississippian  than  Central 
Plains  Tradition  ceramics,  some  Steed-Kisker  ceramics  are  grit 
tempered,  and  no  Steed-Kisker  ceramics  have  been  found  at  Cahokia. 
Some  shell  tempered  ceramics  have  occasionally  been  found  on 
Central  Plains  Tradition  sites,  however.  Even  so,  because  the 
technological  and  stylistic  differences  between  Steed-Kisker  Phase 
and  Central  Plains  Tradition  ceramics  are  readily  apparent  in  the 
vast  majority  of  the  excavated  ceramics,  the  Committee  believes 
that  ceramics  in  the  Steed-Kisker  Phase  are  indicative  of  cultural 
affiliation  with  groups  other  than  the  Central  Plains  Tradition. 

Geographical  Location 

Steed-Kisker  Phase  human  remains  and  funerary  objects  at  the 


89 


6 
National  Museum  of  Natural  History  were  obtained  from  three 
locales:   the  so-called  Steed-Kisker  site  itself,   the  Nolan  C 
"mound, "  and  the  Shepard  "mound, "  all  in  present-day  northwest 
Missouri,  along  the  Missouri  River  and  its  tributaries.   Other 
identified  Steed-Kisker  Phase  sites  are  located  to  the  north, 
south,  east  and  west  (across  the  Missouri  River  in  Kansas)  of  the 
three  locales.  This  area  lies  roughly  between  the  cities  of  Kansas 
City  and  St.  Joseph,  Missouri.   The  locations  of  the  various  phases 
of  the  Central  Plains  Tradition- -the  Itskari,  Nebraska,  Smoky  Hill, 
St.  Helena  and  Upper  Republican- -are  to  the  north  and  west  of  this 
geographic  area.  The  location  of  the  Nebraska  Phase  of  the  Central 
Plains  Tradition  is  along  the  Missouri  River,  extending  south  of 
St.  Joseph  to  the  Sugar  Creek  Ossuary.   Sites  in  this  specific 
area- -Sugar  Creek  and  Cloverdale--may  be  classified  as  Nebraskan 
Phase,  but  contain  clear  elements  of  Steed-Kisker  Phase  as  well. 
Thus  there  is  actual  geographical  overlap  between  the  Nebraska 
Phase  and  the  Steed-Kisker  Phase  in  the  area  to  the  south  of 
present-day  St.  Joseph,  Missouri.   The  Committee  acknowledges  this 
geographical  proximity,  adjacency  and  even  overlap  as  important 
evidence  indicating  an  affiliation  of  the  Steed-Kisker  Phase  with 
the  Nebraska  Phase  of  the  Central  Plains  Tradition. 

House  Form 

Steed-Kisker  Phase  house  forms  are  variable,  as  evidenced  by 
the  presence  of  earthlodges  with  four  interior  support  posts, 
rectangular  houses  with  four  post  roofing  systems,   a  square 


90 


7 
ceremonial  structure,  and  a  partial  wall  trench  house.  The 
diagnostic  type  house  form,  used  by  archaeologists  as  a 
taxonomically  identifying  feature  of  the  Steed-Kisker  Phase,  is  the 
rectangular  four  interior  post  structure.  Even  though  some  authors 
have  attributed  this  style  to  Middle  Mississippian  cultures,  the 
four  interior  post  earthlodge  is  characteristic  of  the  Central 
Plains  Tradition,  and  wall  trench  structures  are  more  clearly 
associated  with  the  Middle  Mississippian  culture.  Excavated  Steed- 
Kisker  Phase  structures  total  ten:  six  rectangular  houses,  two 
earthlodges,  one  (possible)  ceremonial  structure,  and  one  partial 
wall  trench  house.  Given  the  clear  presence  of  Central  Plains 
Tradition-style  earthlodges  and  rectangular  structures  in  the 
excavated  archaeological  record  of  Steed-Kisker  Phase  sites,  the 
Committee  believes  that  the  preponderance  of  house -form  evidence  in 
the  Steed-Kisker  Phase  suggests  a  cultural  affiliation  with  the 
Central  Plains  Tradition. 

Mortuary  Practices 

Mortuary  data  for  the  Steed-Kisker  Phase  are  incomplete,  with 
few  detailed  records. 

The.  Repatriation  Office  outlines  two  primary  pieces  of 
evidence  regarding  mortuary  practices  at  the  Steed-Kisker  Phase 
site  cemetery:  one,  most  burials  are  in  an  extended  position;  and, 
two,  cemeteries  were  laid  out  in  semi-circular  rows.  Both  patterns 
are  reminiscent  of  Middle  Mississippian  Tradition  cemeteries  in 
Illinois,   with  neither  pattern  similar  to  the  Central  Plains 


91 


8 
Tradition.  Although  we  do  not  question  this  observation,  the 
patterning  at  the  Steed-Kisker  Phase  site  was  not  compared  to  the 
within-site  pattern  at  Central  Plains  Tradition  sites. 

Conversely,   the   Pawnee   argue   that   the   lack   of   status 
differentiation  in  .the  cemetery  is  more  representative  of  the 
Central   Plains   Tradition   than   of   societies   of   the   Middle 
Mississippian  Tradition.    The  Pawnee  note  also  that  extended 
burials  have  been  found  in  Central  Plains  Tradition  sites,  even 
though  most  Central  Plains  Tradition  cemeteries  are  ossuaries. 
Furthermore,  ossuaries  are  a  secondary  disposal  practice,  and 
bundle  burials  which  represent  such  practices  have  been  found  at 
Steed-Kisker  Phase  sites.   These  observations  are  also  correct; 
however,  Mississippian  Tradition  cemeteries  associated  with  small 
villages  often  have  little  status  differentiation,  and  secondary 
disposal   practices   were   common   in   Mississippian   Tradition 
societies.  Furthermore,  the  lack  of  detailed  descriptions  for  both 
Steed-Kisker  Phase  and  Central  Plains  Tradition  cemeteries  makes 
detailed  within-site  comparisons  impossible. 

Extended  burials,  secondary  disposal  of  the  dead,  cemeteries, 
and  lack  of  status  differentiation  do  not,  therefore,  suggest  one 
affiliation  over  another.  (More  analysis  and  more  detailed 
examination  of  the  within-site  patterning  of  mortuary  sites  would 
be  needed  to  do  so.)  The  Committee  concludes  that  the  significant 
variability  in  mortuary  practices  by  many  groups  during  the  time 
period  in  question  makes  it  difficult  to  assess  the  existing 
mortuary  data  as  indicating  the  affiliation  of  the  Steed-Kisker 


92 


Phase  with  one  tradition  over  another. 

Oral  Traditions 

Oral  traditions  presented  in  the  Pawnee  Tribe's  response  to 
the  National  Museum  of  Natural  History's  report  on  the  Steed-Kisker 
Phase  and  at  the  Repatriation  Review  Committee's  hearing  in  Denver 
were  extremely  important  and  very  helpful  in  interpreting  the 
archaeological  record.  The  oral  traditions  indicate  two  major 
Caddoan  groups  within  the  Steed-Kisker  Phase  which  are  ancestral  to 
contemporary  groups,  some  becoming  Arikara  (from  the  west  side  of 
the  Missouri  River  [represented  by  the  Calovich  site] ) ,  others 
becoming  Pawnee  (from  the  east  side  of  the  Missouri  River) .  The 
oral  traditions  also  indicate  the  formation  of  the  Pawnee  out  of 
diverse  peoples.  For  example,  the  Skidi  Pawnee  scholar  James  R. 
Murie  recounts  Pawnee  oral  traditions  of  the  South  Band  Pawnees -- 
the  Pitahawirata,  the  Chaui  and  the  Kitkahahki--indicating 
ancestors- -the  Kawarakis--who  lived  in  the  Nemaha  rdgion  of 
southeastern  Nebraska  (the  area  of  the  Nebraska  Phase  of  the 
Central  Plains  Tradition) .  These  traditions  indicate  also  that  a 
group  ancestral  to  the  Kitkahahki  moved  south,  out  of  the  Nemaha 
region.  This  migration  seems  to  have  been  to  the  Steed-Kisker 
Phase  area  east  of  the  Missouri  River,  with  the  Sugar  Creek  Ossuary 
being  a  possible  cemetery  site.  Oral  traditions  also  indicate 
origins  from  the  American  Bottom,  around  Cahokia  at  the  junction  of 
the  Missouri  and  Mississippi  Rivers,  for  the  other  Pawnee  bands. 
The  Committee  finds  the  oral  traditions  presented  to  offer  a 


93 


10 
compelling  argument  linking  the  Steed-Kisker  Phase  to  the  Central 
Plains  Tradition  and  contemporary  Pawnee  (and  Arikara) , 
particularly  when  used  in  conjunction  with  the  archaeological 
evidence . 

Physical  Anthropological  Evidence 

The  craniological  (metric  and  non-metric)  studies  that  were 
involved  in  the  Steed-Kisker  Phase  repatriation  case  are  either 
inadequate  to  the  issue  at  hand,  or  they  are  methodologically 
flawed  for  identifying  affiliation' in  any  statistically  significant 
manner,  or  even  with  the  unscientific  preponderance  of  evidence 
criterion.  With  respect  to  inadequacy,  no  assessments  were  made 
for  the  biological  affinity  of  populations  to  the  east  of  the 
Steed-Kisker  Phase  sites,  namely  Cahokian  and  Cahokian-outliers . 
This  should  have  been  done  since  these  populations  have  been  long 
linked  on  ceramic  grounds  with  the  Steed-Kisker  Phase,  and  should 
have  been  included  in  the  matrix  for  affinity  assessment.'. 

As  for  being  methodologically  flawed,  Steed-Kisker  Phase  sites 
yielded  only  two  measurable  crania.  There  is  no  known  statistical 
procedure  that  could  have  made  a  meaningful  affinity  assessment, 
given  the  probable  variance  in  Plains  cranial  measurements  and  non- 
metric  features.  Moreover,  the  amount  of  environmental  influence 
on  cranial  variation  in  the  Plains  has  never  been  estimated.  It  is 
well  known  that  within-group  body  and  cranial  dimensions  change  to 
some  degree  through  time  with  changes  in  diet  and  other  factors. 
This  sort  of  secular  change  has  been  well  documented  in  other 


23-074  96-4 


94 


n 

groups.  Plains  groups  could  be  craniological  similar  due  to 
similarities  in  their  environments  during  cranial  growth  and 
development,  rather  than  being  similar  due  to  very  similar  genetic 
backgrounds.  The  latter  could  have  been  estimated  using  dental 
morphology.  In  sum,  the  craniological  data  do  not  support  the 
Pawnee  case,  nor  do  they  support  the  Repatriation  Office.  These 
data  are,  for  the  present,  inadequate  and  therefore  irrelevant. 

Settlement  Patterns 

Settlement  data  include  kinds  of  sites  and  site  locations  in 
relation  to  one  another  and  to  the  landscape.  While  it  is  true 
that  the  dispersed  settlement  patterns  reported  for  the  Steed- 
Kisker  Phase  area  more  closely  resemble  a  Central  Plains  Tradition 
pattern  than  a  Middle  Mississippian  Tradition  pattern,  it  is  also 
true  that  no  one  has  conducted  systematic  archaeological  surveys  in 
the  Steed-Kisker  Phase  region.  Because  no  systematic  or  even 
widespread  surveys  have  been  done,  it  is  not  possible  to. make  an 
informed  conclusion  about  settlement  patterning  in  general. 
Nonetheless,  there  is  evidence  for  one  kind  of  site  that  does 
support  a  Central  Plains  Tradition  affiliation  over  a  Mississippian 
Tradition  one  for  the  Steed-Kisker  Phase:  platform  or  pyramidal 
mounds  have  not  been  found  in  the  Steed-Kisker  Phase  area  or  at 
Steed-Kisker  Phase  sites.  Since  such  mounds  are  commonly  and 
usually  associated  with  Middle  Mississippian  Tradition  settlements, 
the  lack  of  these  mounds  is  both  notable  and  significant.  Although 
it  is  true  that  no  systematic  archaeological  surveys  have  been 


95 


12 


conducted,  it  is  very  common  for  most  mound  sites  to  be  known. 
Platform  mounds  are  visible,  were  regularly  recorded  by  Euro- 
American  settlers  and  by  both  amateur  and  professional 
archaeologists,  and  were  a  major  focus  of  investigative  activity  in 
the  late  19th  and  early  20th  centuries.  While  we  would  not  be 
surprised  if  several  mounds  or  mound  groups  in  a  region  were 
missed,  we  note  that  if  there  were  platform  mounds  in  the  region, 
it  would  be  extraordinary  to  have  had  none  reported  at  all.  Since 
several  specific  Steed-Kisker  Phase  sites  have  been  excavated  and 
no  evidence  of  platform  mounds  documented,  it  must  be  concluded 
that,  to  some  degree  the  lack  of  these  mounds  reflects  what  was 
actually  present.  This  represents  a  pattern  more  likely  expected 
in  Central  Plains  Tradition  settlements.  Thus,  settlement  data 
favor  a  Central  Plains  Tradition  affiliation  over  a  Middle 
Mississippian  affiliation  for  the  Steed-Kisker  Phase  in  this 
respect. 

Subsistence 

The  subsistence  economy  of  the  Steed-Kisker  Phase  is  in 
accordance  with  the  general  horticultural/agricultural  strategies 
practiced  by  cultures  utilizing  plains  and  woodland  environments. 
Early  investigations  of  archaeobotanical  remains  from  Steed-Kisker 
Phase  sites  report  the  presence  of  Zea  mays  (corn) ,  Helianthus 
annuus  (sunflower) ,  Cucurbita  pepo  (squash) ,  Juqlans  nigra  (black 
walnut) ,  Carva  sp.  (hickory  nut) ,  Corvlus  americana  (hazelnut) ,  and 
Carva  illinoensis   (pecan) .    More  recent  studies  have  included 


96 


1.3 

fragments  of  Phaseolus  vulgaris  (common  bean)  from  Steed-Kisker 
Phase  sites.  The  presence  of  P.  vulgaris  has  been  discovered  at 
Central  Plains  Tradition  sites,  but  not  at  Cahokia.  This  has  been 
suggested  as  evidence  for  shared  group  identity  between  the  Steed- 
Kisker  Phase  and  the  Central  Plains  Tradition.  However,  the 
similarities  in  subsistence  patterns  between  the  two  is  really  a 
result  of  successfully  adapting  to  a  similar  environment.  p_^ 
vulqaris  fragments  have  been  recovered  from  contemporaneous 
Mississippian  Tradition  sites  (Olin  and  Hill  Creek)  in  Illinois,  as 
well  as  Oneota  Tradition  sites  in  Missouri,  Illinois,  Wisconsin, 
and  Iowa.  Subsistence  is  thus  of  no  use  in  determining 
differential  affiliation  between  the  Steed-Kisker  Phase  and  Central 
Plains,  Mississippian  and  Oneota  Traditions. 

Tools 

Bone  tools  from  Steed-Kisker  Phase  sites  include  awls  made 
from  deer  ulna  fragments,  worked  deer  mandibles  and  various  worked 
antler  fragments.  Such  bone  tools  have  been  recovered  from  Central 
Plains,  Middle  Missouri,  Middle  Mississippian  and  Oneota  Tradition 
sites.   Therefore,  they  are  of  no  diagnostic  use  here. 

Stone  tools  from  the  Steed-Kisker  Phase  include  both  flaked 
artifacts  (e.g.,  projectile  points,  knives,  scrapers  and  drills) 
and  ground  stone  artifacts  (e.g.,  abrading  stones  and  disk 
fragments) .  Projectile  points  described  by  Wedel  are  similar  in 
form  to  Huf faker,  Harrell,  and  Cahokia  projectile  points.  Huf faker 
points  are  found  throughout  the  Plains  from  Oklahoma  northward  to 


97 


14 
the  Dakotas  and  as  far  east  as  Illinois.  The  suggested  age  range 
is  from  A.D.  1000  to  A.D.  1500.  Harrell  points  are  widely 
distributed  in  the  Great  Plains  from  northern  Texas  to  Canada  to 
east  to  the  Mississippi  River  valley  to  west  to  southwestern  and 
northwestern  states.  The  suggested  age  range  is  form  A.D.  1100  to 
A.D.  1500.  This  point  type  is  similar  to,  if  not  identical  with, 
the  Cahokia  point  of  the  Mississippi  River  valley.  The  Cahokia 
point  is  found  in  Illinois,  Iowa,  Wisconsin,  Missouri,  northern 
Arkansas  and  eastern  Oklahoma.  These  points  are  found  in  most 
Mississippian  affiliated  sites  along  the  Mississippi  River  and 
along  Caddo-Mississippian  trade  routes.  The  Cahokia  point  ranges 
in  age  from  Early  to  Late  Mississippian,  first  occurring  around 
A.D.  900. 

The  knives  from  Steed-Kisker  Phase  are  generally  ovoid  in 
shape  or  retouched  chipped  flakes  and  spalls.  Scrapers  are 
described  as  of  common  snub-nosed  or  plano-convex  types.  All  of 
these  flaked  stone  and  ground  stone  artifact  types  have  been 
recovered  from  Central  Plains,  Middle  Missouri,  Middle 
Mississippian  and  Oneota  Tradition  sites.  Thus,  they,  too,  are  not 
useful  in  locating  the  Steed-Kisker  Phase  in  one  of  the  traditions. 

Recommendation  Two 
The  Committee  recommends  that  reasonable  expenses  involved  in 
the  actual  return  of  the  Steed-Kisker  Phase  human  remains  and 
funerary  objects  be  covered  by  funds  allocated  to  the  Repatriation 
Office  for  repatriation  purposes. 


15 
The  Committee  assumes  that  the  Pawnee  Tribe  of  Oklahoma  has 
encountered  some  financial  expenses  in  bringing  their  appeal  to  the 
Repatriation  Review  Committee.  Consequently,  we  wish  to  have  the 
repatriation  of  these  human  remains  and  objects  take  place  without 
any  additional  undue  financial  burden  to  the  Pawnee  Tribe. 

Recommendation  Three 
The  Committee  recommends  that  a  letter  stating  an  intent  to 
repatriate  Steed-Kisker  Phase  human  remains  and  funerary  objects  to 
the  Pawnee  Tribe  of  Oklahoma  be  sent  to  the  approximately  one  dozen 
contemporary  American  Indian  tribes  that  may  be  potentially 
affiliated  with  the  Steed-Kisker  Phase  (as  determined  by  the 
Repatriation  Office) ,  and  that  these  tribes  be  given  a  sixty-day 
(60-day)  opportunity  to  make  a  claim  for  the  Steed-Kisker  Phase 
human  remains  and  objects  and  to  provide  supporting  evidence  to  the 
Repatriation  Office. 

The  Committee  notes  that  cultural  affiliation  of  the  Steed- 
Kisker  Phase  with  traditions  other  than  the  Central  Plains 
Tradition  and  with  contemporary  American  Indian  peoples  other  than 
the  Pawnee  (and  the  Arikara  and  Wichita,  whom  the  Pawnee  have 
represented  in  other  disputes)  are  possible.   The  Committee  also 
notes  that  National  Museum  of  Natural  History  Repatriation  Office 
guidelines  specify  notification  of  all  parties  with  a  potential 
interest  in  human  remains  and  objects  that  are  being  considered  for 
repatriation.     This   notification  may  be   through  newspapers, 
newsletters  and  other  news  media.   In  this  instance,  a  letter  sent 
directly  to  relevant  tribes  is  also  appropriate.   The  Committee 
stands  ready  to  assist  the  Repatriation  Office  by  reviewing  the 
letter  before  it  is  sent,  and  by  assisting  in  the  resolution  of  any 
disputes  which  might  arise. 


99 


UNIVERSITY  OF  CALIFORNIA,  LOS  ANGELES 


BERKELEY-DAVIS     ■     IRVINE     •     LOS  ANGELES     •     RIVERSIDE     •     SAN  DIECO    •     SAN  FRANCISCO 


UCLA 


SANTA  BARBARA     ■     SANTA  ( 


AMERICAN  INDIAN  STUDIES  CENTER 

3220  CAMPBELL  HALL 

BOX  951548 

LOS  ANGELES.  C  A  90095- 1 548 

(310)  825-7315.  FAX  206-7060 


December  10,  1995 

Senator  John  McCain,  Chair 
Senate  Committee  on  Indian  Affairs 
838  Hart  Building 
Washington,  D.C.  20510 

Dear  Senator  McCain, 

I  would  like  to  submit  the  following  testimony  to  your  December  6,  1995  Committee  hearing  on 
repatriation. 

The  clear  intent  of  the  NAGPRA  is  to  repatriate  as  broadly  as  possibly  to  the  American  Indian 
community.  Sec.  2(7)  defines  "tribe"  as  any  community  or  group  that  is  "eligible  for  the  special 
programs  and  services  provided  by  the  United  States  to  Indians  because  of  their  status  of  Indians." 
This  intent  is  obstructed  by  the  imposition,  in  the  1993  Regulations,  of  the  definition  of  "tribes"  as 
those  groups  having  received  formal  recognition  by  the  BIA.  We  strongly  urge  you  to  amend  the 
proposed  rules  to  reflect  the  original  intent  of  NAGPRA  to  include  the  service  population  of 
Indians,  as  generally  defined  in  the  Snyder  Act  of  1921.  The  Snyder  Act  is  used  by  many  Federal 
agencies,  for  example,  the  Indian  Health  Service  of  the  Department  of  Health  and  Human  Services, 
(IHS),  as  the  criterion  for  a  definition  of  membership  in  Indian  tribes  and  groups. 

Given  the  specific  historical  circumstances  of  California  Indians  relations  with  the  Federal 
government  (namely  the  existence  of  18  treaties  which  promised  over  8  million  acres  to  California 
Indians,  signed  in  1852  by  tribal  representatives  and  Federal  agents,  but  never  ratified  by 
Congress),  the  intent  of  NAGPRA  will  not  be  served  in  California  by  the  imposition  of  the  BIA 
definition  of  tribes  and  groups.  The  IHS  promulgated  expansive  criteria  lor  California  Indians  in 
1988  amendments  to  the  Indian  Health  Care  Improvement  Act  of  1980.  In  those  amendments, 
Congress  defined  eligible  "California  Indians"  to  include  members  of  federally  recognized  tribes, 
holders  of  trust  allotments,  and  distributees  under  the  California  Indian  land  settlement  and  their 
descendants,  regardless  of  their  geographic  residence  within  the  state.  The  IHS  calculated  the 
service  population  of  California  Indians  in  1991  at  88,675;  the  BIA  calculation  for  the  same  year 
was  only  36,51 1 .  The  IHS  has  been  authorized  to  designate  slates,  counties,  and  towns  as  "Health 
Service  Delivery  Areas,"  rather  than  reservations,  where  reservations  are  nonexistent  or  so  small 
and  scattered  and  the  eligible  Indian  populations  widely  dispersed  that  it  Ls  inappropriate  to  use 
reservations  as  the  basis  of  defining  the  Health  Service  Delivery  Areas. 

Using  the  criterion  of  membership  in  Federally  recognized  tribes  disproportional  disadvantages 
California,  which  has  the  largest  percentage  of  Indians  from  unacknowledged  tribes  in  the  nation. 
Many,  or  perhaps  most,  unacknowledged  California  Indians  are  descended  from  individuals  who 
were  on  the  judgment  roles  for  land  claims  cases  involving  the  1852  treaties  with  California  Tribes. 
Although  these  individuals  have  one  or  more  forms  of  federal  certification  of  their  status  as 
Indians,  they  are  not  eligible  for  BIA  benefits  under  contemporary  standards  because  their  tribal 
groups  are  not  acknowledged.  Likewise,  this  excluded  population  is  not  benefiting  from 


100 


NAGPRA;  remains  and  cultural  artifacts  from  virtually  every  county  of  California  are  being 
determined  to  be  affiliated  with  tribal  populations  presently  representing  only  a  small  fraction  of 
the  indigenous  social  and  geographical  areas  of  the  state. 

Only  by  using  the  broader  service  population  definition  of  Indian  tribes  and  groups  will 
repatriation  be  carried  out  fairly  according  the  intent  of  NAGPRA.  The  service  population 
definition  is  legal  and  consistent  with  the  policies  of  other  Federal  agencies,  and  will  be  more 
inclusive  and  just  Importantly,  the  service  population  criteria  will  avoid  the  legal  entanglements 
that  will  certainly  arise  as  a  result  of  the  BIA  tribal  recognition  stipulation  in  the  Regulations. 

The  imposition  of  BIA  criterion  of  recognized  tribes  has  seriously  distorted  the  process  of 
determining  cultural  affiliation.  Therefore,  in  addition  to  redressing  the  problem  of  defining  the 
Indian  populations  having  standing  under  NAGPRA,  we  urge  you  to  address  the  related  problem  of 
determining  cultural  affiliation.  The  statistics  of  the  IHS,  California  State  agencies,  as  well  as 
ethnographic  consultation,  have  clearly  demonstrated  that  many  Indian  families  belonging  to 
unacknowledged  groups  in  California  still  reside  in  or  near  their  traditional  locales,  and  still  have 
strong  social  and  familial  associations  with  those  locales.  The  affiliation  with  a  specific  locale  is 
often  ethnographically  unrecognized,  or  if  recognized,  overridden  by  accepted  anthropological 
designations  of  cultural  affiliations.  The  self-identification  of  cultural  affiliation  on  the  part  of 
indigenous  Califomians  exists  as  mutually  recognized  geographical  and  genealogical  contiguities. 
Many  Indian  people  are  currently  being  cut  out  of  the  repatriation  process,  not  only  because  they 
are  not  members  of  formally  recognized  tribes,  but  also  because  their  own  definitions  of  cultural 
affiliation  do  not  accord  with  those  of  scholarly  ethnography  and  archaeology. 

For  example,  the  term  "Chumash"  derives  from  self-identificauon  of  the  people  living  on  Santa 
Cruz  Island,  which  has  been  applied  to  apparently  linguistically  and  culturally  related  ecological 
locales,  or  "provinces".  We  know  that  the  dialects  spoken  in  these  ecological  regions  within 
Chumash  territory  were  very  distinct,  possibly,  some  linguists  believe,  mutually  unintelligible. 
Within  the  cultural  area  known  as  "Chumash"  to  anthropologists,  there  are  seven  distinct,  self- 
identified  socio-cultural  groups.  "Cultural  affiliation"  for  many  "Chumash"  individuals  is  not  what 
anthropologists  and  archaeologists  understand  as  the  similarity  of  "Chumash"  material  cultural 
traits,  rather  their  ethnic  and  cultural  identity  is  more  complex  network  of  genealogical,  historical 
and  social  associations  which  are  fundamentally  underlain  by  a  powerful  contiguity  with  a  specific 
locale,  or  ecological  region.  Some  indigenous  individuals  living  in  "Chumash"  territory  prefer  to 
call  themselves  by  their  regional  names,  most  strongly  identify  with  regional  lineages.  These 
strong  aspects  of  geographical  contiguity  in  the  self-definition  of  ethnicity  are  often  overlooked  by 
anthropologists  who  for  the  sake  of  convenience,  and  because  of  historical  contingencies,  use  both 
too  broad  categories  of  cultural  affiliation  and  too  narrow  categories  of  genealogical  links,  negating 
intimate,  important  cultural  affiliations  with  locales  and  the  historical,  social  persistence  of  familial 
and  clan  level  affiliations.  Much  of  the  evidence  of  the  persistence  of  ethnic/cultural  affiliations 
are  in  the  form  of  oral  histories  which  are  not  explicitly  "cultural"  in  content,  but  recount 
continued,  often  seemingly  informal,  social  associations  of  families  in  the  generations  since  contact 
Also,  the  geographic  boundaries  of  the  locales  -  watersheds  and  topographical  features  -  can  be 
described  by  many  consultants  in  very  minute  detail.  This  knowledge  is  sometimes  attributed  by 
anthropologists  to  contemporary  cultural  resource  management  strategies.  However,  in  many 
locales  elders  not  involved  in  cultural  resource  matters  have  similar  knowledge,  and  also  share 
convictions  about  the  importance  of  extended  families  and  locale  in  determining  cultural  affiliation. 


101 


Under  the  current  NAGPRA  law,  remains  from  any  ecological  locale  in  the  "Chumash"  cultural 
area  determined  to  be  affiliated  with  "Chumash"  culture  would  repatriated  to  the  Santa  Ynez 
"Chumash",  the  only  band  having  a  reservation  and  Federal  recognition.  The  Santa  Ynez 
reservation  represents  a  small  fraction  of  the  total  "Chumash""  population,  (roughly  two  hundred 
individuals  on  the  reservation  out  of  several  thousand  total).  While  individuals  from  many 
"Chumash"  clans  live,  or  have  lived,  on  the  reservation,  the  larger  Santa  Ynez  area  itself  represents 
one  of  several  distinct  "Chumash"  regions,  overlapping  with  the  reservation  in  complex  ways. 
There  is  an  implicit,  and  sometimes  explicit,  acknowledgment  on  the  part  of  individuals  on  the 
Santa  Ynez  reservation  that  human  remains  from  other  locales  properly  fall  under  the  jurisdiction 
of  the  families  associated  with  those  locales,  yet  the  Santa  Ynez  "tribe"  currently  has  the  final  say 
in  the  disposition  of  the  remains,  and  other  bands  of  "Chumash"  are  completely  dependent  on  the 
present  good  will  of  the  Santa  Ynez  for  the  recognition  of  their  own  wishes  concerning  the  return  of 
their  ancestors  taken  from  other  regions.  Analogous,  but  even  less  fortunate,  situations  exist  in 
other  places  in  California. 

The  inverse  of  the  "Chumash"  situation  is  that  of  the  Luiseno  where  one  "tribe"  is  represented  by 
several  different  reservations.  Each  reservation  considers  themselves  to  constitute  a  Luiseno  band. 
The  socio-cultural  affiliation  of  each  reservation  tribal  council  is  based  on  specific  ancestral, 
familial  territories  larger  than  the  reservations  themselves.  Specific  Luiseno  bands  apparently  have 
no  interest  in  the  repatriation  of  remains  from  the  territories  of  other  Luiseno  bands.  UCLA  will 
presumably  consider  repatriating  specific  remains  to  one  of  the  Luiseno  bands/reservation 
claimants,  Pechanga,  rather  to  the  "tribe"  itself,  even  though  cultural  affiliation  will  probably  be 
determined  as  "Luiseno"  for  lack  of  any  more  specific  ethnographic  designation.  There  is  not  now, 
and  was  not  elhnohistorically,  any  overarching  political  or  social  organization  representing  a 
Luiseno  "tribe",  even  though  the  Luiseno  bands  shared  very  similar  linguistic  dialects,  and  share  a 
common  designation  derived  from  the  Spanish  mission  at  San  Luis  Rey.    Different  historical 
circumstances  combined  with  the  BIA  criteria  of  the  NAGPRA  regulations  have  created  the 
illusion  of  a  single,  overarching  "Chumash"  tribal  entity/cultural  affiliation,  making  repatriation  a 
quite  different  process  there  than  it  is  in  Luiseno  territory. 

Dealing  with  the  determination  of  cultural  affiliation  on  the  level  of  locale  and  families  rather  than 
"tribes"  will  make  the  process  of  repatriation  more  feasible  and  less  contentious,  as  well  as  more 
accurate  and  just.  For  example,  remains  from  the  Los  Angeles  basin  can  potentially  be  claimed  by 
Gabriel  ino/Tongva  individuals  from  five  or  six  separate  Gabriel ino/Tongva  communities.  Under 
the  current  proposed  regulations,  remains  from  the  Los  Angeles  basin  determined  to  be  associated 
with  the  Gabrielino  /Tongva  are  culturally  "unidentifiable",  with  the  possibility  of  repatriation  to 
the  unrecognized  Gabrielino  Tribal  Council  based  in  San  Gabriel  (but  not  to  specific  families  or 
communities),  or  on  the  principle  being  used  in  "Chumash"  territory,  to  the  Luiseno  as  BIA- 
recognized  Takic  speakers  of  a  similar  Uto-Aztecan  dialect.  (Gabrielino  and  Luiseno  dialects  may 
have  had  the  same  or  greater  degree  of  intelligibly  than  some  of  the  closer  "Chumash"  dialects.) 
Most  Luiseno  and  Gabriel  ino/Tongva  individuals  find  neither  of  these  possibilities  a  satisfactory 
resolution  for  repatriation,  rather  they  recognize  and  prefer  the  protocol  of  affiliation  based  on 
locale. 

Instead  of  viewing  the  Gabrielino  communities  as  "factions"  which  need  to  form  a  consensus  before 
repatriation  can  occur  (a  virtual  impossibility,  according  to  some),  we  can  view  these  communities 
as  bands  of  Gabrielinos  in  the  same  way  Luiseno  individuals  identify  five  bands  and  "Chumash" 
seven.  Gabrielino  communities  are  also  groups  of  families,  associated  with  specific  locales,  and 
the  cultural  affiliation  of  specific  remains  could  be  determined  accordingly.  The  imposition  of  a 


102 


tribal  name  upon  geographically  widespread  "Gabrielino"  communities  may  fit  a  handbook 
definition  of  cultural  affiliation,  but  does  not  reflect  the  persistence  of  more  diverse  social  and 
geographical  ethnic  self-identifications.  Not  surprisingly,  this  self-identification  is  the  most  likely 
basis  of  consensus  for  all  of  the  involved  parties. 

As  a  final  example  of  the  unnecessary  difficulties  caused  by  both  B1A  tribal  recognition  criteria 
and  the  implicit  ethnographic  assumptions  about  cultural  affiliation,  there  is  an  individual  who  is 
claiming  cultural  affiliation  with  an  heretofore  unrecognized,  unnamed  Southern  Channel  Island 
ethnicity.  This  individual  is  enrolled  as  both  a  Luiseno  and  Gabrielino/Tongva.  He  claims,  and 
most  archaeologists  and  ethnographers  agree,  that  the  Island  people  formed  a  separate  ethnicity 
while  intermarrying  with  both  Luiseno  and  Gabrielino  people.  He  also  claims  that  some  Island 
people  survived  and  have  remembered  their  Island  ethnicity  on  the  mainland  over  the  last  150 
years,  and  that  his  elderly  ancestors  substantiate  this  claim.  However,  this  individual  and  his 
relatives,  even  as  enrolled  members  of  recognized  and  unrecognized  Indian  groups,  presently  have 
no  standing  under  NAGPRA.  His  claim  is  a  critically  important  one  given  the  magnitude  of 
archeological  collections  from  the  Southern  Channel  Islands.  His  oral  history  has  met  initially  with 
mild  to  extreme  skepticism  from  anthropologists  who  have  a  knowledge  of  the  ethnohistorical 
records  of  the  coastal  areas.  But  his  testimony  also  potentially  contributes  to  the  evidence  for  the 
persistence  of  regional  affiliations,  and  reciprocally,  if  the  importance  of  Native  understandings  of 
regional  contiguity  are  taken  into  serious  consideration  in  the  consultation  process  in  NAGPRA, 
this  testimony  could  be  sympathetically  received,  given  its  due  weight  as  evidence,  and  potentially 
substantiated  by  ethnohistorical  research. 

NAGPRA  clearly  stales  that  expert  opinion  and  Native  testimony  will  be  given  equal  weight  in 
determination  of  cultural  affiliation.  If  Native  testimony  and  scholarly  evidence  are  truly  to  be 
given  equal  weight,  Native  testimony  has  to  be  judged  on  its  own  terms,  and  not  on  implicit,  prior 
scholarly  presumptions  about  how  cultural  affiliation  will  be  defined.  The  evidence  shows  that 
cultural  affiliation  is  maintained  in  Southern  California  (and  I  strongly  suspect  elsewhere  as  well), 
on  a  level  much  more  minute  and  diverse  than  that  recorded  in  the  ethnographic  record,  and  that 
these  cultural  affiliations  with  very  specific  and  regional  locals  have  persisted  against  great  odds 
for  the  last  several  hundred  years. 

The  difference  between  Native  testimony  and  scholarly  documentation  is  often  cast  as  the 
difference  between  "science"  and  "religion".  Native  testimony  does  not  only  represent  different 
spiritual  beliefs,  but  also  represents  different  intellectual  theories  about  cultural  affiliation. 
Academic  definitions  of  cultural  affiliation  represent  different,  but  not  inherently  more  empirical, 
understandings  of  cultural  affiliation.  Objectivity  concerning  cultural  affiliation  can  be  rendered 
only  within  an  inclusive  field  of  knowledge.  This  is  especially  the  case  for  the  cross-cultural 
cooperation  required  by  NAGPRA. 

The  negotiation  of  a  consistent,  inclusive  definition  of  cultural  affiliation  is  a  difficult  task,  but  one 
which  should  not  be  avoided  any  longer.  The  interpretation  of  the  implicit  intent  of  NAGPRA  rests 
on  the  definition  of  "cultural  affiliation".  If  the  expressed  goal  of  NAGPRA  is  to  involve  local 
Native  participation  in  die  repatriation  process  on  an  equal  basis  with  NAGPRA  institutions  and 
expert  opinions,  the  Review  Committee  should  explicitly  define  "cultural  affiliation"  by  including 
specific  Native  understandings  of  "cultural  affiliation."  Obviously,  this  should  be  done  in 
conjunction  with  Native  consultation,  and  should  draw  on  what  has  been  learned  in  the  nationwide 
consultation  process  for  the  NAGPRA  Inventory  and  in  the  Review  Committee  hearings.  This 


103 


would  be  a  significant  step  toward  making  repatriation  a  fairly  negotiated  process,  and  would  also 
contribute  substantially  to  the  cross-cultural  pursuit  of  intellectual  knowledge. 

The  determination  of  cultural  affiliation  on  terms  other  than  those  of  BIA  tribal  recognition  will 
avoid  the  potential  legal  entanglement  of  NAGPRA  institutions  from  federally  unrecognized 
claimants,  both  immediately  and  in  the  future.  The  descendants  of  indigenous  people  of  this  state 
persist  in  knowing  who  they  are,  where  they  belong,  and  what  belongs  to  them;  imposing  tribal 
entities  and  boundaries  that  violently  cut  across  their  contiguous  cultural  affiliations  will  probably 
not  go  uncontested. 

Sincerely, 


Duane  Champagne 

Director,  American  Indian  Studies  Center 


104 


TESTIMONY  REGARDING  PROCEDURES  TO  IMPLEMENT  NAGPRA 

PUBLIC  LAW  101-601 
SU8MITTED  TO  THE  SENATE  COMMITTE  ON  INDIAN  AFFAIRS 

By  Darrell  Drapeau .Chairman , Greg  Bourland, Secretary , 
Dakota  Territory  Chairmans  Council 
December  18,  1995 

Chairman  McCain  and  Members  of  the  Committee,  thank  you  for  giving  us  the 
opportunity  to  comment  on  the  procedures  to  implement  the  Native  American 
Graves  Protection  and  Repatriation  Act,  Public  Law  101-601,  commonly  referred 
to  as  the  NAGPRA. The  Dakota  Territory  Chairmans  Council  has  instructed  Darrell 
Drapeau,  Chairman  of  the  Yankton  Sioux  Tribe,  and  myself,  Greg  Bourland, 
Secretary  of  the  Council  and  Chairman  of  the  Cheyenne  River  Sioux  Tribe,  to 
submit  the  following  testimony  about  this  very  important  Act  on  behalf  of  the 
Dakota  Area  Tribes.  Our  council  was  formed  by  our  respective  tribal 
governments  to  establish  a  strong  and  unified  voice  among  the  tribal 
leadership,  which  in  turn  represents  tens  of  thousands  of  enrolled  members, 
we  have  been  closely  following  the  work  of  the  North  Dakota  Intertribal 
Reinternment  Committee  and  today  wish  to  submit  testimony  which  supports 
the  issues  they  have  been  raising  with  the  regulatory  process  to  implement 
the  NAGPRA. 

Since  the  appointment  of  the  NAGPRA  Review  Committee,  we  have  had  serious 
concerns  regarding  the  implementation  of  NAGPRA  and  have  followed  the  process 
closely.   Although  Assistant  Secretary  Ada  Deer  gave  us  her  written  promise 
that  she  would  not  sign  off  on  the  proposed  final  regulations  until  such  time 
that  they  were  published  again  and  received  another  public  comment  period, 
she  did  not  keep  her  promise.   We  were  told  by  her  staff  that  she  was 
"pressured"  into  signing  off  on  them  only  a  short  while  before  the 
Oversight  Hearing,  scheduled  to  investigate  our  problems  with  them,  was  held. 
Because  of  this,  we  are  faced  with  the  very  grave  decision  of  looking  to  the 
courts  for  relief.   Members  of  the  Committee,  we  do  not  undertake  this 
decision  lightly,  but  before  we  are  forced  to  act  upon  it,  it  may  be  that  you 
can  do  something  to  ameliorate  the  serious  concerns  we  raise  before  you  now. 

Before  we  go  any  further,  however,  we  are  compelled  to  refer  to  a  directive 
given  by  President  William  Clinton  over  two  years  ago.   In  this  Executive 
Proclamation  on  Indian  Affairs,  President  Clinton  stated,  "The  United  States 
is  bound  by  a  special  trust  relationship,  requiring  the  Congress,  the 
President,  and  all  entities  of  the  federal  government  to  assure  that  the 
'good  faith  shall  always  be  observed  toward  the  Indians,'  as  provided  for 
in  the  North  West  Ordinance  of  1781  ....  legal  documents  shall  be  interpreted 
liberally  in  favor  of  the  tribes  and  as  the  tribes  would  have  understood 
them."   Further,  "The  United  States  shall  forever  continue  to  respect  and 
protect  the  government-to-government  relationship  with  American  Indians  and 
Alaskan  Native  tribes,  a  relationship  principle  that  historically  has  been 
a  cornerstone  of  this  nation's  offical  Indian  policy"  and  finally,  "The 
United  States  shall  support  and  assist  American  Indian  and  Alaskan  Native 
tribes  in  exercising  broad  sovereign  tribal  authority  over  all  places, persons, 
property  and  even  with  their  territorial  jurisdiction..." 


105 


Senators,  we  submit  that  the  final  regulations,  as  currently  written, 
redefine  Indian  tribes,  Indian  sovereignty,  and  Indian  policy.  In  our  review, 
the  problems  inherent  in  the  final  regulations  represent  a  major  Indian  policy 
change  successfully  conducted  through  the  regulatory  process. 

Chairman  McCain  and  Members  of  the  Committee,  from  the  many  letters  our 
tribes  have  written  each  of  you,  you  are  all  well  aware  of  the  serious  issues 
we  have  raised  surrounding  the  regulatory  process.   We  maintain  that  tribes 
were  not  represented,  had  little  opportunity  for  input,  and  the  issues  we  did 
manage  to  raise  were  ignored.   The  law,  through  regulatory  language,  has  been 
gutted  of  its  protection  to  tribes.   More  than  that,  major  Indian  policy 
changes  have  successfully  been  manipulated  through  the  regulatory  process. 
We  are  gravely  concerned,  and  we  are  outraged  that  nothing  was  done  about  our 
concerns  when  changes  to  the  regulations  could  have  been  made  through  a  second 
publication  and  comment  period  that  we  have  been  seeking  for  nearly  two  years. 
When  our  requests  for  an  Oversight  Hearing  were  finally  honored,  however, 
the  regulations  were  "hustled"  into  the  final  stage,  thus  ensuring  that  once 
again,  Indian  people  will  have  to  live  with  a  law  that  does  not  protect  our 
interests,  does  not  do  what  Congress  promised  it  would  do  for  us,  and  forces 
us  to  the  courts  to  protect  our  rights  and  that  of  our  deceased  ancestors. 

Chairman  McCain  and  Members  of  the  Committee,  we  want  you  to  see  what  it  is 
tribes  will  have  to  live  with,  now  that  reinterpretations  of  the  law  have  been 
finalized  in  the  regulations. 

*  The  regulatory  definition  of  tribal  lands  strips  tribes  of  their  right 
to  exert  jurisdiction  over  any  and  all  persons  and  lands  within  their 
exterior  boundaries.   This  reinterpretation  will  create  serious  problems 
for  those  tribes  who  have  fee  patent  lands  within  their  boundaries  and 
is  in  direct  violation  of  current  Indian  policy  and  the  Act  itself. 
Again,  we  refer  you  to  President  Clinton's  Executive  Proclamation  on 
Indian  Affairs  to  see  for  yourselves  where  Secretary  Babbit,  in 
finalizing  this  version  of  regulations,  failed  to  extend  good  faith  and 
insure  the  federal  government's  trust  responsibilities  to  tribes. 

*  The  regulatory  definitions  of  "possession"  and  "control"  reinterpret 
language  which  was  meant  to  act  as  a  protective  device  for  insuring  that 
the  temporary  possession  of  items  by  museums  did  not  result  in  an  illegal 
transfer,  but  they  have  now  been  changed  to  mean  "have  a  legal  interest 
in".   This  reinterpretation  of  the  Act  will  have  far  reaching,  negative 
effects  for  tribes,  because  we  must  now,  in  addition  to  proving  that  we 
are  related  to  our  dead  relatives,  also  prove  that  the  museum  has  no 
"legal  interest"  in  them.   Who,  besides  their  descendants,  could  be  said 
to  have  a  "legal  interest"  in  our  dead?   In  our  view,  this  unethical 
reinterpretation  establishes  the  concept  of  "ownership"  of  our  dead, 
their  personal  belongings,  and  our  sacred  property.   We  submit  that  this 
is  something  Congress  did  not  intend  when  NAGPRA  was  passed.   Because  no 
one  listened  to  us,  however,  we  tribes  will  have  to  live  with  this  "theft 
by  regulation"  until  we  can  produce  the  uncertainties  for  tribes.   We 
further  submit  that  we  did  not  support  and  work  hard  for  the  passage  of 
NAGPRA  so  that  we  could  bring  home  our  dead  relatives  and  sacred  property 
by  way  of  courts,  we  worked  hard  for  this  law  because  we  were  told  it 
would  keep  us  out  of  court. 


106 


Statutory  language  is  silent  regarding  the  repatriation  of  human  remains 
incorporated  into  other  cultural  items,  such  as  a  war  shirt  decorated 
with  human  scalps.  The  law  has  not  been  interpreted  liberally  in  favor 
of  the  tribes  nor  as  we  would  have  understood  it,  as  accepted  Indian 
policy  requires. The  final  rule  ignores  our  values  about  our  own  property, 
which  should  inform  all  decisions  about  repatriation,  and  as  a  result, 
the  regulations  prevent  the  repatriation  of  human  remains  incorporated 
into  other  items.  This  is  an  excellent  example  of  how  many  decisions 
were  made  without  the  input  of  tribal  leaders,  who  would  have  prevented 
this  misinterpretation  of  the  law  and  provided  protection  for  our 
interests,  given  the  opportunity. 

Several  key  determinations,  such  as  whether  or  not  an  item  is  sacred  or 
whether  or  not  human  remains  are  affiliated  with  a  particular  group, 
have  been  left  to  the  museum  and  science  industries,  our  most  vocal 
opponents  in  repatriation.  In  the  event  that  tribes  disagree  with  a 
museum's  decision,  their  only  recourse  after  informal  negotiations  is  to 
go  to  court.  Once  again,  we  submit  that  we  did  not  participate  in  the 
passage  of  this  law  only  to  find  ourselves  in  court,  year  after  year,  in 
order  to  bring  our  relatives  and  sacred  property  home.  Moreover,  had  the 
tribes  been  granted  more  access  to  the  regulatory  process  itself,  we 
could  have  offered  our  expertise  and  guidance  on  matters  that  are  more 
property  within  our  purview  than  that  of  museums':  we  are  the  experts  on 
our  relatives  and  sacred  property,  not  the  museums,  yet  our  knowledge 
and  expertise  have  been  effectively  excluded  from  the  realm  of 
decision  making  -  we  are  only  allowed  a  consultation  after  museums  have 
made  their  decision.  Finally,  federal  agencies  and  museums  have  seemingly 
endless  resources  to  support  a  legal  defense  in  the  event  a  tribe 
disputes  their  decision,  however,  that  is  not  the  case  with  impoverished 
tribal  governments  who  are  having  trouble  funding  lif e-and-death 
initiatives  back  home,  such  as  preventing  elders  from  freezing  to  death 
by  providing  the  minimum  standard  of  housing.  This  places  the  tribes  at  a 
unfair  advantage, Senators,  when  all  museums  have  to  do  is  say  "  No  ", 
and  tribes  have  to  decide  between  bringing  a  lawsuit  or  watching  tribal 
members  join  the  ranks  of  the  homeless. 

Discussions  at  the  Oversight  Hearing  of  December  6,1995  included  proposed 
amendments  to  the  Act.  In  addition,  there  are  several  sections  of  the 
Act  for  which  proposed  regulations  were  placed  in  "  Reserved  "  status, 
and  announcements  have  been  made  that  these  proposed  regulations  will 
soon  be  published  in  the  Federal  Register.  Developing  amendents  to  the 
Act  and  proposed  regulations  for  the  Reserved  Sections  are  two  important 
opportunities  available  to  the  Senate  Committee  to  insure  improved  tribal 
participation  and  protection  of  our  rights.  Chairman  McCain  and  Members 
of  the  Committee, the  Dakota  Territory  Chairmans  Council  hereby  officially 
requests  that  you  direct  Secretary  Babbitt  to  include  coalitions  of 
regional,  tribal  NAGPRA  representatives  in  all  deliberations  regarding 
amendments  to  the  Act  and  proposed  regulatory  language  for  the  Reserved 
Sections.  Had  such  an  attempt  been  made  with  the  Final  Regulations  before 
us  today,  we  would  not  have  to  be  writing  to  you  to  complain  about  the 
serious  problems  in  those  regulations.  A  directive  from  your  committee, 
we  feel,  will  be  highly  effective  in  assuring  that  tribes  are  not  again 
left  out  of  the  loop  in  these  important  deliberations,  and  will  also 
insure  that  discussions  are  carried  out  for  the  purpose  of  creating 
consensus,  and  not  protecting  the  interest  of  the  science  and  museum 
industries,  which  will  in  turn  enable  this  most  important  Act  to  do  what 
it  was  intended  to  do. 


107 


*   The  problems  with  the  regulatory  process  to  implement  the  NAGPRA  are  not 
new  :  the  near-total  lack  of  tribal  input,  representation  and  ability  to 
protect  our  sovereign  rights  is  a  struggle  we  have  lived  with  for  over 
five  hundred  years.  Therefore,  the  Dakota  Tribal  Chairman's  Council 
hereby  officially  requests  that  the  Senate  Committee  on  Indian  Affairs 
begin  negotiations  with  ours  and  other  intertribal  councils  to  develope 
legislation  to  create  a  new  method  whereby  consensus  and  meaningful 
representation  of  tribes  can  be  included  in  all  proposed  regulatory 
language  written  to  implement  laws  affecting  Indian  tribes.  Our  problems 
will  change  only  when  the  system  changes,  and  not  before. 

Chairman  McCain  and  members  of  the  Committee,  we  are  grateful  to  you  for 
the  opportunity  to  present  our  views  and  problems  for  your  consideration  and 
action.  Please  accept  this  testimony  in  the  spirit  in  which  it  was  given  -- 
we  only  want  the  law  to  do  what  it  was  intended  to  do,  and  that  is  to  bring 
home  all  of  our  relatives,  all  of  their  personal  burial  belongings,  and  all 
of  our  sacred  and  cultural  property.  You  can  see  that  we  are   not  asking  for 
anything  unreasonable.  All  we  want  is  to  revitalize  our  nations  and  our 
communities,  to  bring  life  back  to  our  people.  8y  helping  us,  you  will  have 
enabled  us  to  do  this  wonderful  thing  for  our  relatives  and  for  the  countless 
generations  yet  unborn.  We  look  forward  to  your  response  to  this  important 
testimony  and  to  the  requests  we  have  made  therein. 


Sincerely 


Q~MO, 


Darrell  Drapeau,  cnairman 

Dakota  Tribal  Chairman's  Council  and 

Chairman,  Yankton  Sioux  Tribe 


Greg  Bourland,  Secretary 

Dakota  Tribal  Chairman's  Council  and 

Chairman,  Cheyenne  River  Sioux  Tribe 


108 


*2*±   THE 

Is  NAVAJO 
0  NATION 


December  18,  1995 


WRITTEN  TESTIMONY  OF  NAVAJO  NATION  REGARDING  THE  IMPLEMENTATION  OF 
THE  NATIVE  AMERICAN  GRAVES  PROTECTION  AND  REPATRIATION  ACT 
SUBMITTED  TO  THE  SENATE  COMMITTEE  ON  INDIAN  AFFAIRS  BY  ALAN  DOWNER, 
DIRECTOR,  NAVAJO  NATION  HISTORIC  PRESERVATION  DEPARTMENT 


The  Navajo  Nation  would   like  to  begin  by  expressing   its 
appreciation  to  the  Committee  for  the  opportunity  to  comment  on  the 


implementation  of  the  Native  American  Graves  Protection  and 
Repatriation  Act  (Act) .  The  Navajo  Nation  was  a  strong  and  active 
supporter  of  the  Act  throughout  its  labored  development  and 
enactment.  As  the  Navajo  Nation's  lead  agency  for  matters  that  are 
subject  to  the  Act,  the  Historic  Preservation  Department  has  been 
active  both  in  the  development  of  the  Act  and  in  its  implementation 
from  the  outset. 

The  Navajo  Nation  has  had  generally  favorable  experiences  with  the 
implementation  of  the  Act.  It  is  the  Historic  Preservation 
Department's  impression  that  the  museums  and  federal  agencies  with 
which  it  has  dealt  have  been  pursuing  the  mandates  of  the  Act  in 
good  faith,  attempting  as  best  they  can  to  comply  with  both  the 
letter  and  the  spirit  of  the  law.  The  Historic  Preservation 
Department  has  had  dealings,  in  one  form  of  another,  with  over  280 
museums  so  far.  We  have  yet  to  find  a  single  instance  where  we 
felt  that  the  museum  was  stalling  or  attempting  to  some  how  or 
other  avoid  compliance  with  the  Act. 

While  the  Navajo  Nation's  overall  experience  has  been  generally 
positive,  we  do  believe  that  there  are  several  issues  of  which  the 
Committee  should  be  aware. 

1.  It  is  clear  that  the  deadlines  contained  in  the  Act  are 
totally  unrealistic,  especially  in  light  of  the  Administration's 
and  Congress'  apparent  reluctance  to  provide  ample  funding  for  the 
grants  program  created  by  the  Act.  Neither  the  Tribes  nor  (we 
suspect)  the  Museums  have  the  requisite  fiscal  resources  to  deal 
properly  with  repatriation. 

The  preparation  of  inventories  is  time  consuming  and  costly. 
Review  of  the  inventories  is  equally  time  consuming,  especially 
when  the  Historic  Preservation  Department  must  deal  with  over  half 
of  the  museums  which  have  filled  inventories.  The  inventories  are 
based  largely  on  existing  accession  records,  which  may  or  may  not 
accurately  reflect  what  the  collectors  and/or  curators  thought  they 


109 


Page  2 

NAVAJO  NATION  TESTIMONY 

ON  THE  IMPLEMENTATION  OF  THE 

NATIVE  AMERICAN  GRAVES  PROTECTION 

AND  REPATRIATION  ACT 
December  18,  199S 

had  collected.  It  is  clear  from  the  Historic  Preservation 
Department's  experience  that  the  collectors/curators  may  or  may  not 
have  really  known  what  they  had.  Accordingly,  the  Historic 
Preservation  Department  has  made  it  a  practice  to  examine 
collections  in  person  rather  than  to  rely  on  the  inventory 
description  as  a  basis  for  beginning  repatriation  activities.  The 
inventories  simply  alert  the  Historic  Preservation  Department  to 
the  fact  that  a  museum  has  Navajo  material  in  its  collections.  The 
Historic  Preservation  Department  must  then  begin  to  make  a 
determination  of  whether  or  not  the  collection  contains  any  Navajo 
materials  that  should  be  repatriated. 

This  entails  sending  staff  to  museums,  sometimes  for  extended 
periods  to  examine  collections  and  determine,  what  if  any  material 
constitutes  Navajo  sacred  or  ceremonial  items  and  cultural 
patrimony.  This  can  be  very  costly.  But  we  have  no  other  option 
if  the  Navajo  Nation  is  to  obtain  return  of  those  items  which 
really  should  be  returned  to  the  Nation  and  put  back  in  use  in 
traditional  ceremonies  or  otherwise  appropriately  treated. 

The  Navajo  Nation  believes  that  a  minimum  of  $10  million  must  be 
appropriated  to  fund  grants  to  Tribes.  Anything  less  than  that 
amount  is  simply  totally  inadequate  to  meet  the  minimum  Tribal 
needs  to  expeditiously  complete  the  processes  established  by  the 
Act  and  its  implementing  regulations. 

2.  It  appears  to  the  Navajo  Nation  that  the  definition  of  Indian 
Tribe  in  the  Act  may  be  too  restrictive.  The  Navajo  Nation 
supported  the  Act  both  because  it  sought  to  have  Navajo  items  of 
cultural  patrimony  returned  to  the  Navajo  Nation.  But  the  Navajo 
Nation  did  not  view  this  issue  in  the  narrow  light  of  Navajo 
interests  alone.  Instead,  the  Navajo  Nation  recognized  that  this 
is  a  matter  deeply  affecting  all  Native  Americans  and  the  Navajo 
Nation's  involvement  with  these  issues  has  always  conducted 
recognizing  this  larger  context. 

The  purpose  of  the  Act  is  to  ensure  that  Tribes  can  obtain  the 
return  of  human  remains  and  items  of  cultural  patrimony  which  are 
inappropriately  in  the  possession  of  museums  and  federal  agencies. 
The  Navajo  Nation  has  always  understood  that  the  principal  purpose 
of  the  Act  was  to  promote  rapid  repatriation  of  such  materials  to 
the  proper  Tribe.  It  appears  that  there  may  be  Tribes  which  are 
excluded  from  this  process  because  they  do  not  have  federal 
recognition.  While  we  believe  it  may  be  premature  to  seek 
amendments  to  the  law  at  this  time,  we  do  think  that  the  Committee 


110 


Page  3 

NAVAJO  NATION  TESTIMONY 

ON  THE  IMPLEMENTATION  OF  THE 

NATIVE  AMERICAN  GRAVES  PROTECTION 

AND  REPATRIATION  ACT 
December  18,  1995 

should  continue  to  monitor  this  issue  and  consider  seeking  to  amend 
the  Act,  if  it  becomes  clear  that  this  issue  is  a  serious  problem. 

3.  Our  experience  indicates  that  there  are  a  number  of  portions 
of  the  Act,  which  were  drafted  very  carefully  to  resolve  a  very 
specific  problem  which  have  been  found  to  have  unintended  or 
otherwise  negative  consequences.  For  example,  Congress  has  created 
a  property  right  in  human  remains  and  vested  that  right  in  Tribes 
and/or  individual  Native  Americans  according  to  a  carefully 
specified  priority  listing.  Creating  a  property  right  and  vesting 
it  Native  Americans  was  probably  essential  to  eliminating  the 
museums'  erroneous  claims  of  ownership  rights  to  those  remains  they 
possessed. 

Unfortunately,  creation  of  this  right  has  lead  to  increased 
tensions  between  some  Tribes,  which  result  from  conflicting  claims 
of  ownership.  Exacerbating  such  tensions  is  the  fact  that 
archaeological  evidence  (of  which  human  osteological  data  can 
sometimes  be  a  part)  can  figure  heavily  in  litigation  pertaining  to 
land  and  resources  claims  of  Tribes.  In  some  instances  several 
Tribes  have  conflicting  claims  to  land  and  resources,  and  a  federal 
agency's  determination  of  who  is  the  rightful  owner  of  human 
remains  has  the  potential  to  provide  evidence  to  one  side  or  the 
other  in  such  a  dispute. 

At  this  point  the  Navajo  Nation  does  not  believe  that  an  amendment 
to  the  law  is  called  for.  However,  we  do  believe  that  this  is  an 
issue  that  should  be  tracked  closely.  It  may  well  be  the  case  that 
in  the  future  problems  arising  from  these  unintended  consequences, 
may  need  to  be  resolved  by  amending  the  Act. 

4.  A  federal  District  Court  in  Hawaii  has  ruled  that  human 
remains  do  not  have  standing  under  the  Act.  In  reading  the  Court's 
opinion,  it  is  apparent  that  in  some  striking  ways  Navajo  beliefs 
are  very  similar  to  the  Native  Hawaiian  belief  that  the  spirits  of 
the  dead  continue  to  live,  albeit  on  another  plan  of  existence. 
There  is  communication  between  the  spirit  world  and  the  everyday 
world  of  the  living.  Spirit  beings  can  affect  the  living  and  the 
living  can  affect  the  dead.  In  Navajo  tradition,  disturbance  of 
the  dead  (of  any  ancestry)  can  lead  to  very  serious  adverse 
consequences  for  individuals,  families,  communities  or  even  the 
entire  Nation.  The  Navajo  Nation,  however,  agrees  with  the  Court 
that  the  practical  difficulties  arising  from  who  would  "speak"  for 
the  remains  would  make  it  all  but  impossible  to  apply  such  standing 


Ill 


Page  4 

NAVAJO  NATION  TESTIMONY 

ON  THE  IMPLEMENTATION  OF  THE 

NATIVE  AMERICAN  GRAVES  PROTECTION 

AND  REPATRIATION  ACT 
December  18,  1995 

as  a  practical  matter  in  a  federal  Court.  As  a  practical  matter, 
the  Navajo  Nation  believes  that  the  disturbance  of  the  spirits  of 
the  dead  can  only  be  dealt  with  in  the  appropriate  traditional 
settings  of  the  people  descended  from  the  remains.  Furthermore, 
the  Navajo  Nation  believes  that  allowing  such  standing  could  well 
lead  to  the  sorts  of  unintended  consequences  just  discussed. 

The  Congress  should  not  consider  amending  the  Act  in  this  area 
unless  further  experience  indicates  that  this  is  the  only  way  to 
redress  abuses  of  the  Intent  of  the  Act. 

5.  The  Navajo  Nation  notes  with  some  interest  the  suggestion  made 
that  the  Act  be  amended  to  provide  for  some  form  of  "guardianship." 
Such  a  concept  has  some  appeal  because  it  would  provide  for  a 
definitive  resolution  of  a  number  of  problems.  However,  the  Navajo 
Nation's  reading  of  the  Act  suggests  that  in  essence  (if  not  in 
express  language)  such  a  concept  is  inherent  in  the  Act  today. 

The  Act  establishes  a  clear  delineation  of  ownership  of  remains 
according  to  an  explicit  priority  listing  of  ownership.  Clearly, 
the  owners  should  be  regarded  as  the  "guardians."  Where  a  Tribe 
declines  to  assume  its  rightful  role  in  this  regard,  the  Navajo 
Nation  does  not  see  that  any  good  can  come  from  arbitrarily 
assigning  such  a  role  to  another  party  or  from  trying  to  impose" 
guardianship  on  a  reluctant  Tribe. 

The  Navajo  Nation  is  well  aware  that  some  Tribes  believe  that  the 
damage  caused  by  disinterment  in  the  first  place  can  not  be 
remedied.  In  addition,  a  number  of  Tribes  believe  that  the 
consequences  of  attempting  to  undo  the  damage  already  done  by 
exhumation  and  "curation"  is  too  dire  to  even  contemplate. 

Accordingly,  while  the  Navajo  Nation  is  sympathetic  to  the  concept, 
it  can  not  support  arbitrary  assignment  some  form  of  guardianship 
to  a  Tribe  or  tribal  organization  beyond  the  concepts  already 
embodied  in   the  Act. 

6.  The  Act  recognizes  that  there  may  be  instances  when  more  than 
one  Tribe  makes  a  claim  for  repatriation  of  human  remains  and/or 
items  of  cultural  patrimony.  On  the  surface,  the  Act  provides  for 
dispute  resolution  by  the  agency,  the  agency  must  examine  the 
evidence  and  make  a  decision.  However,  the  Navajo  Nation  finds  the 
Act  ambiguous  on  this  point.  On  the  one  hand,  agencies  are 
directed  to  make  a  decision  based  on  the  preponderance  of  the 


112 


Page  5 

NAVAJO  NATION  TESTIMONY 

ON  THE  IMPLEMENTATION  OF  THE 

NATIVE  AMERICAN  GRAVES  PROTECTION 

AND  REPATRIATION  ACT 
December  18,  1995 

evidence.  On  the  other  hand,  agencies  are  prohibited  from 
repatriating  items  while  a  dispute  exists.  Finally,  federal  Courts 
appear  to  have  decision  making  authority,  but  it  appears  to  the 
Navajo  Nation  that,  since  the  Act  provides  no  real  basis  for  an 
agency  to  make  a  decision,  there  is  no  real  way  for  a  claimant  to 
exhaust  the  administrative  process  and  then  appeal  to  the  Courts 
for  resolution. 

The  Navajo  nation  recommends  that  the  Committee  examine  the 
language  pertaining  to  agency  decision  making  when  disputes  arise 
and  consider  amending  the  Act  to  provide  agencies  with  clearly 
delineated  authority  to  reach  an  administrative  decision. 

7.  Questions  regarding  the  confidentiality  of  data  in  the  museum 
inventories  and  with  respect  to  any  research  conducted  during  their 
preparation  have  arisen  as  a  result  of  the  federal  district  Court's 
ruling  in  Na  Iwl  O  Na  Kupuna  0  Hokapu,  et  al .  vs  John  Dalton,  et 
al. 

The  Navajo  Nation  believes  that  the  Court  has  correctly  read  the 
Act  and  the  Freedom  of  Information  Act  (together  with  relevant  case 
law) .  Furthermore,  the  Court  has  given  balanced  consideration  of 
the  issues  surrounding  the  public  benefits  of  disclosure  and  the 
need  to  protect  general  information  in  the  inventory  and  any 
associated  research  from  disclosure.  As  a  general  matter,  the 
Navajo  Nation  sees  no  need  to  amend  the  Act  in  this  regard. 

However,  the  Navajo  Nation  does  believe  that  there  is  a  compelling 
need  to  protect  locational  Information  from  disclosure.  Native 
American  grave  sites  (both  original  locations  and  reinterment 
locations)  are  vulnerable  to  looters.  It  is  this  status  as 
looters'  targets  that  led  Congress  to  prohibit  unpermitted 
excavation  and  trafficking  in  Native  American  human  remains. 
Accordingly,  the  Navajo  Nation  believes  that  an  amendment  to  the 
Act  be  enacted  which  expressly  exempts  locational  information  from 
public  disclosure  under  the  Freedom  of  Information  Act. 

In  closing,  the  Navajo  Nation  would  like  to  reemphasize  that  it 
appreciates  the  efforts  of  Congress,  and  more  particularly  this 
Committee,  to  ensure  the  prompt  repatriation  of  Native  American 
human  remains  and  items  of  cultural  patrimony.  This  is  an 
important  and  highly  sensitive  area,  the  complexities  and  nuances 
of  which  the  Act  deals  with,  for  the  most  part,  with  great  success. 
The  Navajo  Nation  urges  the  Committee  to  continue  to  oversee 
implementation  and  to  consider  carefully  limited  amendments  if  and 


113 


Page  6 

NAVAJO  NATION  TESTIMONY 

ON  THE  IMPLEMENTATION  OF  THE 

NATIVE  AMERICAN  GRAVES  PROTECTION 

AND  REPATRIATION  ACT 
December  18,  1995 

when  serious  implementation  problems  arise.  The  Navajo  Nation 
urges  the  Committee  to  carefully  consider  potential  unintended 
consequences  of  the  Act  and  any  amendments.  The  Navajo  Nation 
believes  that  implementation  of  the  Act  so  far  has  revealed  several 
such  unintended  consequences,  which  may  prove  serious  in  the  long 
run. 

The  Navajo  Nation  thanks  the  Committee  for  this  opportunity  to 
provide  testimony.  If  the  Committee  has  any  questions,  wishes  to 
discuss  any  of  this  testimony,  or  if  the  Committee  feels  that  the 
Navajo  Nation  can  provide  any  further  assistance  in  furthering  the 
aim  of  the  Act,  please  feel  to  contact  Dr.  Downer  directly. 


114 


Statement  by  David  C.  Holt  (Ti'  Ped  Ki'uun)  Nez  Perce 

on  implementing  of  the  Native  American  Graves  Protection  and  Repatriation 

Act,  (P.L.  101-601) 

In  the  beginning,  Grandfather  Creator  and  Mother  Earth  blessed  we  Nez  Perce 
or  Nee  Mee  Poo.  All  other  Indigenous  people  were  also  blessed.  The  Creator 
and  Mother  Earth  provided  for  all  of  our  relations.  I  am  one  of  your  relations, 
we  all  are  related,  everything  is  connected  according  to  Earth  Law. 

Grandfather  Creator  placed  us  in  our  homelands.    We  the  Red  Nations  along 
with  the  buffalo,  the  fish,  the  birds,  the  medicines,  and  all  our  other  relations  on 
this  continent  are   the  Indigenous  people.   We  have  always  been  here  on  this 
continent.  The  people  who  have  immigrated  from  other  parts  of  our  Mother 
Earth  now  make  the  laws  with  their  Senate  and  Congressional  Representatives. 
They  now  are  the  majority,  still  knowing  little  about  Red  Nations  and  so,  still 
violating  their  human  rights.    Laws  made  for  mainstream  society,  have  made   ~ 
indigenous  people  suffer  worldwide. 

Since  the  first  foot-steps  of  non-Indians  on  our  country  Indian  Nations  have 
suffered  as   people.   We  are  still  denied  our  Religious  Freedom  from  the  very 
immigrants  who  came  to  our  lands  seeking  Religious  Freedom.    They  still 
come...  Grandfather  Creator  knows  they  have  amnesia  when  it  comes  to  so- 
called  "Law  of  the  Land,"  or  treaties  made  with  Indian  Nations.   The  treaties 
and  lives  of  Indigenous  people  have  been  broken.  We  now  are  victims  to  the 
immigrant's,  policies,  laws  and  regulations.     We  are  victims  to  their  Religious 
dictates,  their  attitudes,  ignorance  and  arrogance. 

The  immigrants  hold  dearly  to  their  archaeological    evidence  and  theory  of 
the  Aleutian  Islands  as  a  land  bridge  from  which  the  Indians  supposedly  came. 
If  this  were  so,  immigrants  who  now  occupy  our  lands,  oppress  our  people  with 
their  laws,  would  be  rid  their  guilt  for  inhumanities    inflicted  during  genocide 
against  Indian  Nations  and  exploitation  of  all  our  relations. 

Our  ancestors  remains,  their  tools,  and  beliefs  are  studied  and  used  against  we 
descendants.  Desecration  continues  in  the  use  of  archaeological  evidence 
studied^  while  immigrants  try  to  rid  their  guilt,   Obviously  the  evidence  is  our 
ancestor's  remains,  sadly  many  are  human  remains. 

Meanwhile  our  lands  are  flooded  with  more  immigrants  who  study  our 
ancestors,  their  remains  and  pay  to  see  them  in  Federal,  state  and  private 
museums  and  parks,  or  private  and  public  collections. 

Now  we    must  comment  on  new  rules  and  regulations  which  deal  with 
remains  of  our  ancestors.     This  within  government  policy   dealing  with  lineal 
criteria  established  by  descendants  of  the  immigrants.   There  have  been  Non- 
Indian  and  Native  champions   though.   They  have  helped  to  provide   the  Native 
American  Graves  and  Protection  and  Repatriation  Act  or  NAGPRA. 

A  lack  of  good  faith  and  a  continuation  of  human  right  violations  existed  in 
preparation  and  implementation  of  the  rules  and  regulations  of  Monday 


115 


December  4,  1995  published  in  the  Federal  Register  .   Even  though  there  was  a 
review  committee  made  up  with  Native  people,  without  proper  funding  good 
faith  flies  out  the  window. 

The  review  committee,  in  monitoring  implementation,  consulting  with  the 
Secretary,  advising  Congress,  and  facilitating  the  resolution  of  disputes  lacked 
the  appropriate  funding  to  provide  for  adequate  results.  Disputes  should  be  settled 
on  behalf  of  the  original  people  in  good  faith. 

The  number  of  disputes  is  expected  to  increase,  making  it  more  difficult  to 
resolve  conflicts  between  museums,  Indian  tribes,  and  Native  Hawaiian  orgi- 
nizations.   Presently,  for  instance,  the  Nez  Perce  tribe  located  in  the  northwest, 
has  to  buy  back  the  remains  of  their  ancestors  from  a  private  collection.  Their 
dispute,  caused  from  the  infliction  of  missionaries  upon  them  from  the 
government.    Now  after  being  stripped  by  missionaries  of  their  belongings, 
who  then  sold  them  for  under  $50.00  Now  our  people  must  pay  almost 
),000.00  for  their  return. 


Almost  ten  years  ago,  as  an  elected  official  for  the  Nez  Perce,  I  supported  the 
contracting  of  the  Nez  Perce  Historical  Park  by  the  Nez  Perce  tribe.  Tribes 
already  93-638  contract  most  Bureau  of  Indian  Affairs  programs.  The  Nez  Perce 
would  manage  and  run  the  museum  and  park  centers.  The  park  centers 
around  Nez  Perce  history  primarily  anyway.    There  is  some  justification  for 
the  Spalding  missionaries  life   to  be  cited  there,  however  much  of  the 
inhumanities  they  inflicted  upon  the  Indians  is  hidden  by  present  depiction's 
and  interpretations  by  the  National  Park  Service. 

The  grant  program  initiated  in  FY  1994  is  needed  now  more  than  ever  to 
facilitate  reviewing  documentation,  establishing  cultural  affiliation,  promoting 
ongoing  dialogue  between  Indian  tribes,  Native  Hawaiian  organizations, 
Federal  agencies  and  museums. 

The  Nez  Perce  have  hundreds  of  human  remains  scattered  across  the  nation. 
The  government  enforcing  their  "steal-treaties"  on  the  Nez  Perce  and 
enforcing  their  religious  teachings  upon  our  people  have  left  many  of  our 
people's  bodies  scattered  like  dust  in  the  winds.  The  documentation  is  vast  in 
volume  and  so  scattered  in  different  states,  private  and  federal  depositories. 

Sadly  the  appropriations  are  meager.  Fear  and  ignorant  compliance  of  a 
vaguely  presented,  "Contract  with  America"  has  lowered  the  Senate  and 
Congressional  representatives  sensitivity  to  treaty  compliance,  human  rights 
and  equal  protection  of  the  laws.   We  suffer  by  appropriation  and  we  are  being 
attacked  by  appropriation  process. 

Appropriations  for  NAGPRA  implementation  within  the  budgets  of  Federal 
agencies,  particularly  the  land  management  agencies  with  the  largest 
collections  and  lands  to  mange;  i.e.,  NPTS,  BLM,  FWS,  BOR,  and  Army  Corps 
of  Engineers,  are  essential  if  agencies  are  to  meet  their  statutory  requirements. 


116 


As  recommended  by  the  review  committee  for  such  a  large  and  complex 
program  appropriations  need  to  be  increased  to  about  $10  million.  With  the 
hundreds  of  Indian  and  Native  Americans  and  organizations  the  increase 
should  be  atleast  $50  million.  This  would  be  good  faith  appropriations. 

Impending   disputes  will  arise  over  the  meaning  of  "Indian  Tribe"  further 
burdening  inadequate  appropriations.    Congress  should  clarify  the  meaning  of 
"Indian  Tribe"  within  NAGPRA  in  order  to  permit  Native  American  groups 
not  presently  recognized  by  the  Department  of  Interior  Bureau  of  Indian  Affairs 
to  repatriate  their  human  remains,  funerary  objects,  sacred  objects,  or  objects  of 
cultural  patrimony. 

Congress  must  take  steps  to  assure  that  the  Smithsonian  complies  with  all 
NAGPRA   requirements.   The  Smithsonian  up  until  November  of  1995  had 
posted  in  the  Natural  History  building  in  the  Native  Cultures  display  area,  a 
very  derogatory  article  about  the  Native  Protection  Graves  Protection  and 
Repatriation  Act.  The  article  was  posted  for  months  on  the  bulletin  board  for  all 
passing  public  to  read.  This  article  was   very  biased  and  racist, 

The  article  written  from  an  archaeologist's  point  of  view,  blames   Indians  for 
destroying  history.    This  destruction  comes  from  enactment  and  enforcement 
of  NAGPRA.   A  picture  was  taken  of  the  posted  article  and   story  written  by 
America's  Eagle  Magazine  and  published  last  year.    America's  Eagle  Magazine 
has  mailed  the   U.S.  Senate  Indian  Affairs  a  copy  of  the  story. 

The  Smithsonian  operates  under  a  variety  of  policies  regarding  Native 
American  repatriation.   The  Smithsonian  does  not  have  to  provide  inventories 
of  human  remains  and  associated  funerary  objects  to  Native  Americans  on  or 
before  November  16,  1995. 

The  Smithsonian  does  not  have  to  provide  written  summaries  of  its  holdings  to 
tribes.  The  Smithsonian  does  not  have  to  follow  the  repatriation  procedures  for 
human  remains  or  cultural  items  required  of  all  other  museums  federal 
agencies,  or  universities. 

Congress  must  consider  legislation  to  protect  Native  American  and  Native 
Hawaiian  graves  located  on  state  or  private  lands  from  grave  robbing  and  other 
kinds  of  destruction  and  desecration.   Enforcement  suffers  from  ignorance 
from  assumed  jurisdictions  and  political  in-fighting  by  states  and  tribal  and 
native  governments  and  organizations  causing  some  delay  in  repatriations. 

Publication  of  Federal  Register  notices  on  time  may  be  difficult  given  available 
resources.   This  could  delay  repatriations.   Any  publication  of  civil  penalty 
regulations,  need  to  ensure  compliance  with  the  statute,  will  require  additional 
effort  to  meet  new  enforcement  responsibilities. 

There  has  been  confusion  by  some  tribes  as  to  the  roles  of  the  Interior,  the  tribes, 
and  museums  and  parks.   The  December  4,  1995  regulations  are  less  more 
constraining  on  the  Indian  people  than  the  museums.  Still  a  lack  of  address  to 


117 


private  collections,  private  lands  and  enforcement  echoes  a  meager  impact  in 
the  long  run.  Tribes  face  excessive  tribal  delays,  costs  in  attorney  fees,  travel, 
and  other  impending  problems. 

I  provide  two   stories  in  which  the  Congressional  and  Senate  representatives  can 
relate  to.  (Note  Attached)  To  the  Non-Indian  world,  to  the  U.S.  Government,  our 
Chiefs  are  our  spiritual  leaders,  our  peace-keepers  and  our  Presidents.  Look  at 
these  two  articles  and  realize  the  date. ..early  January  1996.   How  would  the 
Congress  and  Senate  like  to  read  of  the  skulls  of  their  presidents  being  removed 
from  their  bodies? 

We  all  have  supported  the  repatriation  of  our  dead  from  Vietnam.  The  same 
support  is  needed  both  in  money  spent  and  the  effort  into  repatriation.  It  is  only 
right  that  human  beings  be  respected  even  after  death.  __  ._„ 


That  is  all, 

David  C.  Holt, 
Ti'  Ped  Ki'uun 


118 


mmmmrms 

Skull  and  Bones  red  e 


e  up_f6rquesti§ning  ^ 

,  By  Paul  BrinkIey-Roger3^t?g 


OLD  WEST; 


i& 


'He  died  an  old  man.  a  prisoner  or 
war  who  dreasad  up  m  ridiculous 
costumes  lo  poso  for  tourist  photos. 
But  in  life,  he  was  as  fm  and  elu- 
sive as  the  wind,  r---  »■(••. 
-'  He  *u  such  a  scourge  in  the 
Southwest  that  tho  U.S.  government 

buried  Geronlmo  whore  they  held 

him,  in  Fort  Sill,  Okla,,  far  away 

from    Arizona,    -where    he    and   his 

-  Chiricahua  Apaches  had  held  out 

until  the  end.  :      V-'  ■  -  •■  -   :• 
',  In  lew,  his  remains  were  laid  to 
rest.  Interred  in  a  concrete  and  iron 
tomb  at  Fort  Sill  that  to  thlsjla 
►-remains  a'tDurlstBCJ^ac^on7,^^ 
fif. '  Or  ware  ihey  7  ■'-  '■-  ;.'„; .; .(/>..■.''..-  l  ■  ..:' >, ; 
i'*  a  former  Chairman  of  .'the  San 
,  Carlos  ApaoncH  believes,  based  on  ' 
[  some  historical  documents  and  an 

■  an  unusual  encounter,  with  the 
I  brother  of  Vice  President  George- 
j  Bush,  that  soon  after  Geronlmo  wn 
{,:  bnrled,  a  group  or  young  Army  offi. 
J,  cars  broke,  into  his.  tomb  as  part  of 
{'■ a  prsnk,^*'  Jz*?^j@i&<'*£'''. > .■  •  j  :.■'.■■:.:.>'• 
If ■■"■  Ned  Anderson',  who  led  the  tribe  , 
t  from  1978  w  1986,  wants  Rep.'  Mor-. 
t  rn  rjdall,  D-Arbt.,  to  open  n  con- 
/.groaianal  Investigation  into- the" 
f  matter.  Anderson  flaya  flpcurntnta 
[from  Yale  .University's  Becretivo 

i.  Skull  and  Banc*  society^  4  student 
i  and  alumni -club,  show  that  George 
[-Bush's  father,  Prescott  S.  BuBh.  led 
rvthe  grave  robbers  and;tooX  Geronl-  J 
fmn's  sknll  so  be  could  hang  it  on  the" 
p.  clubhouse  wall. ?_r. ■•.-'•'< !-:,k  ►-•'a:  $Mrjj' 
;t    In    September  -19B6, lrAnderson 
r  aald,  Jonathan  Bush  the,vlce  presl- 
i;  dent's  brother,  tried  to  return  the 
i  skull  and  other  relin  to  Anderson 

*  in  New  York.  City  after  the  Apache  " 
loader  pointed  out  tiet  tribal  mem- 
bers regard  the  remains  ax  sacred. 

['$.  Ho  showed  documents  from  Skull  • 

]■  and  Bones,  into  which  all 'three 

Bushes  were  initiated,  that  spell  out 

■  In  detail  what  Prescott  Bush  and 

•  his  friends  did  thatnleht  70  years 
'■ago.--'-  ■■-•••  .fV-.  ■•■■  :*.■■;.. 
.:  Anderson  said  Sen.  John  McCain, 
;  R-Aria.,  tried  lo  help  try  attempting 
'.to  set  op  a  meeting  with  the  rice 

*  president  two  years  aeo  When  Bush 
I  was   In   Phoenix,  iut>-va  meeting 

failed  to  come  off.  -  $Snfi  -i/f-v  >  ■•  -  ■■;; 
J'  "I  concludnd  at  {he  time  th'at  he, 

•  Bush,  probably  did- not  want  to 
;  meet  with  mc  because,  he  knew  I 

was  going  teTa.Ua  the  Geronlmo  la- 
,5111!.'  Anderson  told  Udall  in  a  Feb 
'  ruary  letter  requesting  a  congres- 
i  slonal  probe  Into  L'thls  huarro, 
'  atrocious  desecration  " 

•    Ea" 

hlcioi 
i  thac  Skull  and  Bones  members  raid 
.   an  Am — ■ '■-    -  


Are  Qeranlma'a  remains  In  a  grave 

tlonary  leader  Pancho  Villa  from 
his  grave  in  Chihuahua.     •..'•■  '•: 

Endicott  P.  Davison,  a  lawyer  for 
the  society,  denied  that  allegation 
in  an  Interview  with  The  Arizona 
Repablic 

The  EI  Paso  group  nevertheless 

l^ZS?,™^*  a  »««?  or    wrote  to  C«org0  Bush  asklne  the 

ei!,^^Iu.  in  E1  V  listed    vice  president  to  help  return  the 

skuM  to  Mexico,  A  spokesman  for 


at  Fort  Sni? 

c-;t:?         .    -  •  Y\if*¥*&.p&$z 

Davison    did   not   return -phone . 
•  calls  asking  him  to  commant  on  Ajk 
derson'a  allegations,  "^s' ■■*?  *",■*%?" l 
.  Jonathan  Bush  also  did  cot  re. 
'  turn  colla  to  his  komc  and  lo  blB 
.New  York  business  office,  where 
Anderson  said  the  failed  negotia- 
tions for  the  return  of  the  skull  oc- 
curred. '■   •       ■  -,i'.\^v.,K 

Skull  and-Bones  is  one  of  several 


119 


SKULL 


/FROM  G1 


T^r 


ot^jj 


elite  secret  societies  at  Yale  dating  therefsre  "cannot  possibly] be^thflael 
from  the  19th  century.  Its  members-  of  Ocronimo."  "  '  f %  f}?;Cfly^JB£ril 
include  a  long  Hat  of  prominent  -  Anderson  said  he  refused  to  sign 
government  and  business  leaders, .  the  document  hat  retained  a  copy 
and  the  club  steadfastly  refuses  to  of  it  and  the  copy  of  the  club  hlsto- 
discuss  its  rituals  or  to  even  make  ry,  which  Davison  tried  to  retrieve 
membership  lists  public.  from  him,  to  press  Us  quest  for  the, 

Relating  the  story  of  hoar  the  skull  elsewhere.  |  A^lvt&si&ef^v'J? 
vice  president's  father  engaged  in  a  He  said  that  the  cavities  for  the 
"mad  expedition"'  at  Fort  SHI,  a  eyes  and  the  nose  In  the  skull  the; 
183 J  Skull  and  Bones  History  of  two  men  offered  him  ^" did  noi 
Our  Order  says,  "An  ax  pried  open  match  those  in  tha  photo, 'ot.  the 
the  iron  door  of  the  (Geronimo'sJ  skull  I  had."  ■-  /  ».'  ••■":.  i"^Jf&iiv. 
tomb,  and  ...Bush  entered  ana  .A  bridle  and  other  leather  items 
started  to  dig.  .-.'  .enclosed' in'    tne'    wood  and- glaa* 

:-."The  skull  was  fairly  clean,  hav-    showcase  for  the  skull  "apparently 

,  ing  only  some  flesh  Inside  and  a  lit-     were  genuine,". he  said,  "but  I  be- 
lle hair,"  the  author  Of  the  account  :  lieve  someone  switched  the  skull  "ii: 

;  wrote  as  he  described  how  the  raid-  yt   Anderson  met  with  TJdall  in  Feb»~ 

■era  cleaned  it  with  carbolic  acid,  ."l^ruary- 1087  'In  Phoenix  to  pro  tost 
showered  And  bit  the  hay ...  a  happy.,  the  situation  and  then  wrote  to  him 

man."  ..  :..  Uiis  year  to  ask'  for.  an  Interior 

The  elder  Bush  robbed  the  grave,  Committee;  hearing.:. :  He  •  '"•  cited 
the  document  said,  'To  bring  to  the  Gerontmo's  often  expressed'  desire 
T.  (an  apparent  reference  to  the  .  to  Be  burled  In  Arizona  instead  of  in 
"Tomb"  or  clubhouse)  its  most  Oklahoma. -:'-  :-'^ '■•"^"itfljSS&x'+i 
spectacular  'crook.'  the  Skull  of-  "Given  the  fact  that George  Bush 
Ceronlno  the  terrible,  the  Indian  was  a  member  of  Skull  ana  Bones 
Chief    Who    had    taken    49  '  White     In   1948,"   Anderson   wrote  'Udall, 


.Scalps." 

-  Anderson  said  that  after  obtain- 
ing the  account  and  a  photo  of  the 
skull  as  it  is  displayed  at  society 
headquarters     from     a     Skull     and 

Bones  member  be  would  not  identi- 
fy, he  went  to  New  York  City  to 

meet  with  Jonathan  Bosh  and  Davi- 
son, in  an  attempt  to  retrieve  the 


"and  therefore  bad  ta  have  seen 
these  remain*  on  display  during 
that  time  ana  ...  curiously  he  did 
not  say  or  do  anything  about  them. 
"It  would  seem  to  me  that  even  a 
person  possessing  a  mediocre  level 
of  intelligence  Quotient  would  have 

ueetloned  the  origin  of  a  .display 
'— leted    that,  tho    contents 


remains.  Hpers  the  rami: 

■"•After  a  series  of  meetings,'  An-f  FraritDuchcneaux,  coimsgLjon- 
denon  said  that  on  Sept.  5$  1986,  ^inrji affTTf f alrsTor  uib  Hffuse  Interi- 
"Jonathan  Bosh  sod  Davison  at-  or  Committee,  of  which  Uda.ll  Is 
tempted  to  band  over  a  skulL  An-  chairman,  soid  Udell  "took  It  under 
derson  said  he  refused  to  accept  It  consideration,  but  just  didn't  see 
because  he  did  not  believe  it  was  how  the  committee  could  get  into 
-the  one  on  display  Id  the  Skull  and  that.".-: r "':; ''-:  \  •;:'  P^JMtt-l&i  ?<:&' 
Rones  clubhouse.  .  "The  Apache  tribe  itself  did  not 

'  -Anderson  said  Davison  drew  up  a  made  a  formal  request  for  action, ' 
"document  for  him  to  sign,  saying  and  that  would  have  been  a  factor 
•the  Apache  leader  agreed  it  would  in  Mo's  acting  upon  It."  ~"A'vT fi\  <\ 
•be  "inappropriate  for  you.  mc  or  in  ism,  a  pacha  leaders'*  from  ' 
anyone  In  association  with  us  to  reservations  in  Arizona.  New  Mexl- 
■makc  or  permit  any  publication  In    cc  and  Oklahoma  falles  to  agree  OD 

connection   with   this   transaction."     a  request  by  Anderson  anfl  Ronnie 
Anderson     culled     the     document     " 
."irery  insulting  to  Indiana.'* 
"^"Anderson     also    said     he     was ' 
confused  and  annoyed  because  the 


Lupe,"  former   chairman    ot   the 
White  'Mountain-  Apaches,"  that' I 

Geronlmo's  remains  be  returned  to  I 
Arizona  for  rcburlal  in  accordance 
wltn  tribal  custom.  •  ':.' v;  * l ';''; ".  -~ <•--" 
Opposition  to  the  idea,  and  bo  the 


document  also  sola  that  Skull  and 

•Bonos  members  had  submitted  the 

skull  to  "an  expert  In  New  Haven  notion  of  exhuming  his  body,  was 

(where  Yale  is  located  in  Connects-  led    by    OcroniraoTj    deacendantsf 

cut),"  who  determined  that  the  re-  who  number  about  125  and  still  live  - 

mains  were  that  off  a  child  and  in  theFort  Sill aroa.    — ..".r  >-     :r-'  i 


120 


ISez  Perce  Graves 


re 


-'•j 


ed 


CLWUKSTON,   Wash.,    Sept. 

-3-(UPI>— Nez  Perce  Indian 

graves,  including  that  of  Chief 

Joseph,  have  been~robbed  and 

_dcsecrated  near  here,  anthro- 

.  polagists- sTloTfoa'ay.  ?~~  '.'.-■— 

—  The-38-graves,  dating-  back 

more  than  100  years,  were  "in 

an  old  burial  ground  about^S 

muea  wealxlJcre^ ~ — . 

Dr.  Roderick  Sprague—Uni1" 
versity  of  idaho  anthropolo- 
igistL  said  he,  graduate  assis- 
tant Mike  Rutherford  and  "a 
group  of  eight  workers  went 
to  the  site  to  move  the  graves. 
The_bui:lal_ground_i.s_to  .be 

covered  by  .  th"PTpaaL-to».»-«» 
formed  when-Lower~Gra:jiie 
Dam  on  the  .  Snake  Rlvei*  hr- 

finished  in  1975.     .  _ 

__Dr,_S]prague^sald ^rods  ]a 2fl 
-been7  driven  Into  the  ground 


to  locate  coffins,  which  warn 
opened  and  robberTbf  jewelry 
and  skulls.  ;  ,.  _~"j~~^:'-^l: 
Human  skulls  are  worth' $2S 


each— on— a-  bizarre— "under* 
ground"  market  and  consider- 
ably mare  when  smuggled  to 
California,  authorities  said. 
— ^W-mafces-me-mad  to  just 
be  around_the.  place_and  see 
what  has  been  done"  said 
Richard  Half  moon  of  Lapwai. 
Idaho,  chairman  of  the  .Net 
Pecce~~TFibal  "Council.  "We 
know  the  name~Bf~thc  dentist 
who  has  Chief  Joseph's  skull 
and  uses  it  .for  an  aflitray." 
Chief  Joseph,  the  Nez 
Perce's '  greatest  chief ,.J&jj_ at 
faction  'of "tfte~.trib'e^pn  a^DfQ^ 
liant,  1,500  mile-flight  toward 
Canada,  pursued  by  U.S.  cav- 
alryrTho-rgtreat-la~atilriBtBd- 
ieddby-jnllitary-tacUcians..-    ' 


121 


Successes,  Problems,  and  Challenges: 

Implementing  the  Native  American  Graves  Protection  and  Repatriation  Act 

Testimony  to  the  Senate  Committee  on  Indian  Affairs 
Presented  by  Dan  L  Monroe 

Immediate  past  President,  American  Association  of  Museums 

Executive  Director  &  CEO.  Peabody  Essex  Museum 

Member  NAGPRA  Federal  Review  Committee 

December  3.  I99S 


122 


Overview 

On  whole,  affected  parties,  which  include  several  thousand  museums,  universities, 
federal  agencies,  and  Native  American  tribes,  have  implemented  the  Act  in 
accordance  with  the  intent  and  spirit  of  the  law.  More  than  2,700  Native  American 
human  remains  and  122,948  associated  funerary  objects  have  been  repatriated. 
Sixteen  objects  of  cultural  patrimony,  and  212  sacred  objects  have  also  been 
repatriated. 

Key  results  of  the  Act  to  date  include: 

•  Establishment  of  eoual  treatment  under  the  law  for  Native  American  dead 

•  Partial  restoration  of  individual  and  tribal  cultural  and  religious  integrity 

•  Assistance  in  helping  several  tribes  continue  or  restore  traditional  Native  American 
religious  practices 

•  Increased  partnership  among  many  museums,  universities,  and  federal  agencies 
resulting  from  dialogue  reouired  by  the  Act — benefits  include  greater  knowledge  of 
collections,  better  public  interpretation  of  Native  American  art  and  culture,  and 
increased  understanding  and  appreciation  of  the  Native  American  experience 

Given  the  large  number  of  agencies  and  individuals  involved  in  the  Act,  and  the 
complexity  of  issues  the  Act  addresses,  there  have  been  remarkably  few  disputes 
among  the  affected  agencies  and  parties.  The  museum  and  scientific  communities 
have  generally  embraced  the  principles  of  the  Act  and  carried  out  its  provisions  in 
good  faith,  often  at  considerable  individual  and  institutional  expense.  Tribes  have 
done  the  same. 

While  implementation  has  not  been  without  significant  challenges  and  difficulties, 
and  while  it  is  too  soon  to  give  any  comprehensive,  long-term  assessment  of  the 
impact  of  NAGPRA,  to  date  the  Act  has  largely  succeeded  in  realizing 
Congressional  objectives. 


123 
Problems  and  Issues 


Need  to  complete  promulgation  of  regulations.  The  Act  called  for  establishment 
of  regulations  within  a  year  of  its  passage.  Five  years  later,  regulations  have  yet  to 
be  promulgated  though  regulations  covering  part  of  the  Act  will  soon  be 
published.  There  are  several  reasons  for  this  extended  delay. 

•  The  Review  Committee  was  not  appointed  until  a  year  after  passage  of  the  Act  and  it  can 
only  meet,  due  to  budget  restrictions,  two  to  three  times  a  year 

•  Regulatory  issues  are  sensitive  and  they  require  substantial  input  from  affected  parties  and 
subsequent  consideration  by  the  Review  Committee  and  the  Secretary 

•  The  Department  of  Interior's  NAGPRA  Office  is  small  and  its  workload  is  large 

•  The  Department  of  Interior  is  a  large  federal  bureaucracy:  it  is  difficult  to  move  regulations 
through  the  system  in  a  timely  manner 

Absence  of  regulations  over  the  last  five  years  has  caused  unnecessary  confusion 
and  expense  to  museums,  universities,  federal  agencies,  and  Native  American 
tribes.  Though  key  deadlines  for  the  Act — filing  of  summaries  and  inventories- 
have  passed,  it  is  important  that  regulations  for  the  remainder  of  the  Act  be 
promulgated  within  a  reasonable  time. 

Need  to  increase  financial  assistance  to  museums,  universities,  and  Native 
American  tribes.  Congress  has  appropriated  $4.37  million  for  grants  to  museums 
and  tribes.  This  amount  is  less  than  5%  of  the  total,  conservatively  estimated  $55 
million  in  costs  for  NAGPRA  implementation  to  date.  Neither  museums,  tribes, 
nor  Native  Hawaiian  organizations  operate  with  significant  discretionary  funds. 
The  financial  burden  to  all  parties  will  continue  to  be  heavy  as  consultation  related 
to  inventories  of  human  remains  and  associated  funerary  objects  increases. 
Congress  is  making  substantial  cuts  to  federal  support  for  museums  and  tribes. 
These  cuts  will  hurt  the  ability  of  some  museums  and  of  many  tribes  to  carry  out 
NAGPRA  implementation  in  an  effective,  timely  manner. 

Our  nation  has  spent  vast  amounts  of  money,  rightly,  in  an  effort  to  repatriate 
2,500  of  our  dead  from  Vietnam.  There  are  tens  of  thousands  of  Native  American 
dead  that  should  be  repatriated.  The  nation  has  a  moral  responsibility  for  return  of 
these  remains,  many  of  which  were  taken  under  federal  auspices.  Federal  financial 
support  for  NAGPRA  should,  at  a  minimum,  he  doubled  for  the  next  three  years. 


124 


Limited  ability  of non-federally  recognized  tribes  to  participate  in  the  Act.  The 
Department  of  Interior  has  interpreted  the  definition  of  'tribe'  in  the  Act  to  apply 
only  to  federally  recognized  tribes.  Thus,  many  tribes,  some  previously  recognized 
by  the  federal  government  and  others  not,  have  been  disenfranchised  or  partially 
disenfranchised  from  the  benefits  of  the  Act.  More  than  fifty  tribes  are  presently 
filing  for  federal  recognition.  The  Review  Committee  has  urged  the  Secretary  to 
adopt  a  more  liberal  meaning  of  the  term  'tribe'  for  the  purposes  of  the  Act  and 
applicable  only  to  the  Act,  but  to  no  avail. 

While  some  museums,  tribes,  and  the  Review  Committee  have  cooperated  to 
return  some  human  remains  to  non-federally  recognized  tribes,  the  general 
exclusion  of  non-federally  recognized  tribes  who  possess  continuing  cultural 
identity  represents  an  important  flaw  in  the  construction  of  the  Act,  or  its 
interpretation.  Short  of  amendments  to  the  Act,  which  are  not  generally  favored  at 
present.  Congress  can  recognize  this  problem  and  urge  the  Secretary  to  seek 
means  to  ameliorate  it. 

Exclusion  of  the  Smithsonian  Institution  from  NAGPRA.  The  Smithsonian 
Institution,  the  national  museum,  is  not  presently  required  to  adhere  to  the  terms 
and  provisions  of  NAGPRA.  although  assurances  were  given  at  the  time  NAGPRA 
was  passed  that  the  Smithsonian  would  adhere  to  its  provisions.  Instead,  the 
Smithsonian  operates  under  separate  legislation.  The  various  Smithsonian 
museums  operate  under  a  variety  of  policies  regarding  Native  American 
repatriation.  The  Museum  of  the  American  Indian's  policies  provide  greater 
opportunity  for  repatriation  of  Native  American  human  remains  and  cultural  items 
than  NAGPRA  terms  and  provisions.  The  American  Museum  of  Natural  History 
operates  under  separate  policies.  While  the  Smithsonian  has  spent  substantial 
money,  time,  and  energy  on  repatriation,  its  policies  do  not  uniformly  assure  the 
same  rights  to  Native  Americans  as  those  guaranteed  under  NAGPRA. 
Specifically,  the  Smithsonian  does  not  have  to: 

•  provide  inventories  of  human  remains  and  associated  funerary  objects  to 
Native  Americans  on  or  before  November  16,  1995 

•  provide  written  summaries  of  its  holdings  to  tribes 

•  follow  the  repatriation  procedures  for  human  remains  or  cultural  items 
reouired  of  all  other  museums,  federal  agencies,  or  universities 


125 


The  Smithsonian  Institution  argues  that  it  is  making  solid  progress  in  repatriating 
human  remains  and  cultural  items  and  that  bringing  it  under  NAGPRAs  provisions 
would  onjy  encumber  and  slow  their  work.  We  believe  that  as  the  national  museum 
the  Smithsonian  should  set  an  example  for  other  institutions  and  that  present 
Smithsonian  policies,  which  vary  from  museum  to  museum,  do  not  accord  the 
same  level  of  rights  and  protections  to  Native  American  tribes  afforded  under 
NAGPRA. 

To  bring  the  Smithsonian  under  NAGPRA  now  could  only  be  done  through  a 
general  policy  decision  of  the  Secretary  of  the  Smithsonian  or  by  passing  new 
legislation.  A  general  policy  decision  for  all  Smithsonian  museums  to  adhere  to 
NAGPRA  is  a  simpler  option  than  new  legislation.  In  any  case,  special  provisions 
would  have  to  be  made  for  the  Smithsonian  since  they  have  not  uniformly  filed 
summaries  or  inventories,  or  otherwise  complied  with  the  Act.  The  Review 
Committee,  notwithstanding  its  difference  of  opinion  with  the  Smithsonian  on  this 
matter,  plans  to  work  closely  with  the  Institution  to  address  matters  of  mutual 
concern. 

Unidentified  and  Unclaimed  Human  Remains  and  Associated  Funerary  Objects. 
The  most  difficult  unresolved  NAGPRA  issue  involves  the  disposition  of 
unidentified  human  remains  and  associated  funerary  objects.  The  Review 
Committee  is  reouired  to  make  a  recommendation  to  the  Secretary  on  this 
important  matter.  The  fundamental  problem  is  that  NAGPRA  provides  for  return 
of  human  remains  and  cultural  items  where  cultural  affiliation  with  a  specific  tribe 
is  established.  There  are  many  Native  American  human  remains  that  cannot  be 
identified  or  affiliated  with  a  specific  tribe. 

The  Review  Committee  has  taken  testimony  on  this  controversial  issue  from  the 
Native  Americans,  scientists,  museum  professionals,  and  federal  agencies.  Ihfi 
controversy  is  hottest  with  respect  to  disposition  of  ancient  Native  American 
remains.  These  remains  can  seldom  be  affiliated  with  a  specific  tribe.  Scientists 
and  others  argue  that  much  can  be  learned  from  these  remains  and  therefore  they 
should  be  retained  for  further  study.  Native  Americans  almost  unanimously  argue 
that  they  are  culturally  and  otherwise  affiliated  with  these  remains  and  that  their 
religious  and  cultural  beliefs  dictate  that  the  remains  he  returned  and  reburied. 


23-074    96-5 


126 


The  Committee  issued  a  set  of  draft  recommendations  on  this  matter  for  comment. 
The  draft  recommendations  stated,  in  effect,  that  Native  Americans  are  most 
closely  affiliated  with  unidentified  remains  and  that  they  should,  therefore,  have 
the  ultimate  right  of  disposition.  The  response  was  substantial  and  contentious. 
Several  scientists  and  others  responded  by  accusing  the  Committee  of  racial  bias. 
Native  Americans  generally  applauded  the  draft  recommendations.  The  Committee 
is  taking  the  draft  recommendations  under  advisement  and  will  likely  make 
changes  to  the  draft,  based  on  several  thoughtful  commentaries. 

At  its  heart,  this  issue  involves  rights  of  scientific  inouiry  versus  Native  American 
religious  rights.  There  is  some  Question  as  to  whether  or  not  the  Secretary  has  the 
authority,  under  the  wording  of  the  Act.  to  promulgate  regulations  on  disposition 
of  unidentified  and  unclaimed  human  remains.  In  any  case,  it  is  likely  that 
Congress  will  hear  more  about  this  issue  in  the  future. 

Conclusion.  The  Department  of  Interior's  Repatriation  Office,  under  the 
leadership  of  Dr.  Frank  McManamon,  has  done,  on  whole,  an  excellent  job 
overseeing  implementation  of  the  Act.  especially  given  the  limited  staff  and 
resources  assigned  this  office.  Thousands  of  museum,  university,  and  federal 
agency  officials  have  carried  out  the  provisions  of  the  Act  in  good  faith  and  good 
spirit,  as  have  Native  American  tribes  and  their  representatives.  The  Act  has 
promoted  an  increased  respect  and  appreciation  for  differing  world  views  and 
cultural  values.  Taken  on  whole,  the  Act  has  helped  remedy  past  injustices,  it  has 
enhanced  the  cultural  and  religious  integrity  of  many  Native  Americans,  and  its 
has  produced  a  new.  and  better,  relationship  among  Native  American  tribes, 
museums,  federal  agencies,  and  universities.  It  has.  therefore,  largely  succeeded  in 
achieving  the  purposes  for  which  it  was  crafted.  However,  failure  to  provide 
greater  federal  financial  assistance  for  tribal  review  of  inventories  and  face-to-face 
dialogue  and  consultation  may  seriousjy  jeopardize  successful  implementation  of 
the  Ad. 


127 


EAST  INDIA  SQUARE 


SALEM.  MASSACHUSETTS   01970-37B3 
M      U      S  "K      U      M 


TEL:  508-745-1876   PAX:  508-744-6776 


January  26,  1996 


The  Honorable  John  McCain,  Chairman 
Committee  on  Indian  Affairs 
United  States  Senate 
Washington,  DC  20510-6450 

Dear  Senator  McCain: 

I  deeply  appreciate  and  commend  you  for  the  tremendous  leadership  and  support  you  have 
provided  to  Native  American  affairs  and  to  the  issue  of  repatriation.  Following  are  answers  to  the 
questions  you  asked  regarding  my  testimony  and  that  of  others  at  the  hearings  on  implementation 
of  the  Native  American  Graves  Protection  and  Repatriation  Act. 

1 .         How  does  the  NAGPRA  Review  Committee  plan  to  work  closely  with  the  Smithsonian 
Institution  regarding  repatriation  issue  of  mutual  concern? 

The  Committee  has  testified  that  it  believes  the  Smithsonian  Institution,  as  the  national 
museum,  should  adhere  to  NAGPRA  statutory  provisions.  NAGPRA  provisions  provide 
deadlines  for  notification  to  tribes  regarding  holdings  of  human  remains  and  cultural  items. 
Several  Smithsonian  museums  have  not  met  these  deadlines  since  they  operate,  at  present, 
outside  of  NAGPRA' s  authority.  Thus,  many  tribes  do  not  know  what  human  remains  or 
cultural  items  of  potential  interest  to  them  may  be  housed  at  the  Smithsonian. 
Smithsonian  museums  are  not  required  to  go  through  NAGPRA  dialogue  processes  with 
individuals  or  tribes  to  resolve  repatriation  issues.  Finally,  Native  Americans  who  may 
have  concerns  regarding  repatriation  issues  at  the  Smithsonian  do  not  have  access  to  an 
independent  review  committee  to  address  their  concerns.  The  Committee  has  made  clear 
to  the  Secretary  of  the  Smithsonian  that  we  believe  the  Smithsonian  should  comply  with 
NAGPRA  provisions  The  Secretary  has  responded  that  he  does  not  intend  to  assure  that 
all  Smithsonain  museums  comply  with  NAGPRA,  notwithstanding  earlier  pledges  by  the 
Secretary  preceeding  him  to  do  so.  Under  this  circumstance,  the  Committee  has  made 
clear  that,  notwithstanding  a  disagreement  regarding  compliance  with  NAGPRA,  it  stands 
ready  to  work  in  whatever  ways  possible  to  assist  the  Smithsonian  in  carrying  out 
repatriation  of  human  remains  and  appropriate  cultural  items.  No  specific  plan  of 
cooperation  or  coordinated  action  has,  however,  been  developed. 


128 


The  terms  of  the  Review  Committee  members  are  set  to  expire  in  1997.  Do  you  believe 
that  these  terms  should  be  extended  and  if  so,  for  what  length  of  time? 

The  work  of  the  Review  Committee  is  not  complete.  Regulations  have  not  been 
promulgated  (much  to  the  Committee's  chagrin  and  regret)  to  cover  the  entirety  of  the 
Act.  The  present  members  have,  however,  gathered  and  listened  to  a  tremendous  amount 
of  testimony  from  all  affected  parties  and  from  all  parts  of  the  nation  regarding  regulatory 


It  would  be  nearly  impossible  for  new  Committee  members  to  gain  access  to  much  of  this 
testimony  since  it  is  not  written  but  was  rather  delivered  verbally  If  the  Department  of 
Interior  dedicates  sufficient  resources  to  the  Act,  it  would  be  possible  to  complete 
regulations  by  late  1998.  Additionally,  the  Committee  is  likely  to  receive  considerable 
'business'  subsequent  to  the  filing  of  inventories  with  tribes.  Thus  I  recommend  that  the 
present  Committee  continue  in  place  until  1999  and  that  a  new  Committee  be  appointed  to 
continue  the  work,  such  appointments  to  be  solicated,  considered,  and  made  by  the 
Secretary  of  the  Interior,  after  that  time. 

3.  When  will  the  Review  Committee  make  a  final  recommendation  regarding  disposition  of 
unidentified  human  remains?  Do  you  believe  it  is  necessary  for  the  Secretasry  to 
promulgate  regulations  to  enforce  the  Review  Committee's  recommendation  on  the 
disposition  of  unidentified  and  unclaimed  human  remains? 

The  Review  Committee  is  working  as  quickly  as  possible  within  the  limits  of  time  imposed 
by  a  schedule  of  three  meetings  a  year  to  complete  its  recommendations  on  this  difficult 
set  of  issues.  The  matter  is  contentious.  The  Committee  has  heard  many  in  the  scientific 
community  argue  that  unidentified  remains,  especially  ancient  remains,  should  be  retained 
by  museums,  universities,  and  federal  agencies  due  to  their  research  value.  Most  Native 
Americans  want  these  remains  reburied.  NAGPRA  provides  little  guidance  on  this  matter 
since,  by  definition,  it  is  not  possible  to  establish  cultural  affiliation  for  these  remains.  I 
expect  the  Committee  to  submit  a  second  set  of  recommendations  for  field  comment  in 
1996  and  to  attempt  to  make  a  recommendation  to  the  Secretary  of  the  Interior  in  1997. 
The  Secretary  will  then  have  to  prepare  draft  regulations  and  allow  time  for  field  comment 
prior  to  promulgating  regulations.  There  is  no  question  whatsoever  but  that  the  Secretary 
will  have  to  promulgate  regulations.  The  Review  Committee's  recommendation  does  not 
carry  the  force  of  law  and,  given  the  contentiousness  of  the  issue,  it  is  highly  likely  that 
some  agencies  would  choose,  absent  regulations,  not  to  adhere  to  the  Review 
Committee's  recommendations. 

4.  Na  Iwi  O  Na  Kupuna  O  Mokapu,  Heleloa,  Ulupa  u  A  Me  Kuwa'a'ohe  v.  John  Dalton 

Should  the  Freedom  of  Information  Act  be  applied  to  NAGPRA  inventories? 

This  is  a  difficult  issue  since  it  requires  balancing  freedom  of  information  against  potential 
damage  to  Native  American  graves  caused  by  release  of  information  regarding  Native 


129 


American  grave  sites,  many  of  which  are  located  at  remote  locations  that  are  difficult  to 
protect.  In  general,  I  believe  that  there  should  be  some  constraints  on  unfettered  public 
access  to  inventories.  There  are  several  possible  approaches.  Anyone  requesting  access  to 
inventory  information  could  be  asked  to  state  their  purpose  in  acquiring  this  information; 
their  name  and  address  could  be  obtained;  and  tribes  could  be  notified  that  the  information 
has  been  requested.  If  tribes  object  to  dissemination  of  the  information  then  references  to 
geographic  location  of  burial  sites  could  be  eliminated  from  the  inventories  prior  to  their 
release.  This  approach  provides  some  protection  without  unduly  limiting  research  or  other 
legitimate  access  to  inventory  information.  While  time-consuming,  this  approach  is  less 
troublesome  than  exempting  NAGPRA  inventory  information  from  the  Freedom  of 
Information  Act  entirely,  thereby  inhibiting  historical  or  other  studies,  including  those  that 
Native  American  historians  may  wish,  at  some  time,  to  undertake  pertaining  to  the 
acquisition  of  Native  American  human  remains.  Congress  will  need  act  on  this  matter, 
given  the  above  court  ruling,  if  some  protection  is  to  be  provided  to  Native  American 
grave  sites. 

Does  NAGPRA  adequately  address  the  issue  of  scientific  studies  of  human  remains? 

I  believe  NAGPRA  statutues  are  clear  with  respect  to  extended  scientific  studies  once 
cultural  affiliation  has  been  established.  Statutes  explicity  prohibit  additional  study 
following  a  determination  of  cultural  affiliation  based  on  existing  records.  I  am  at  a  loss  to 
understand  the  court's  ruling  on  this  matter. 

Are  new  definitions  of 'inventory',  'scientific  study',  and  'scientific  information'  required 
in  NAGPRA  given  the  court's  ruling  in  Hawaii? 

It  will  obviously  be  necessary,  either  by  statute  or  by  regulation,  to  clarify  the  meaning  of 
'scientific  studies'  and  'scientific  information'  to  protect  against  unwarranted  additional 
study  following  a  determination  of  cultural  affiliation.  The  intent  of  NAGPRA  was  clear- 
no  additional  studies  are  to  be  undertaken  once  cultural  affiliation  has  been  established.  To 
permit  additional  studies  often  represents  a  violation  of  Native  American  human  rights  and 
religious  convictions,  as  well  as  providing  for  delays  in  repatriation. 

Under  what  circumstances,  if  any,  would  further  scientific  studies,  either  during  the  course 
of  compilation  of  an  inventory  or  after  the  conclustion  of  such  an  inventory,  be  warranted? 

Scientific  studies  approved  by  tribes  likely  affiliated  with  remains  may  be  justified  during 
compilation  of  an  inventory.  Scientific  studies  that  are  opposed  by  tribes  likely  to  be 
affiliated  with  human  remains  should  not  be  undertaken  Scientific  studies  undertaken  after 
inventories  have  been  completed  should  only  be  permitted  when  the  national  interest  is  at 
stake,  or  when  further  study  may  help  resolve  determination  of  cultural  affiliation. 
Scientific  studies  of  ancient  remains  that  are  not  affiliated  with  any  present  day  tribe  or  set 
of  tribes  constitutes  a  distinctly  different  set  of  issues.  The  Review  Committee  has  not 
formulated  a  position  on  this  question. 


130 


Should  Congress  amend  the  Act  to  provide  authority  for  legal  actions  to  be  brought  by 
those  who  may  qualify  to  serve  as  guardians  for  the  purposes  of  invoking  the  Act  to 
protect  Native  American  human  remains? 

Since  a  good  portion  of  the  law  has  become  so  technical  that  even  knowledgeable,  well 
educated  persons  cannot  understand  it  within  a  reasonable  period  of  time,  it  is  difficult  to 
comment  in  an  informed  manner  on  this  question.  In  general,  the  Hawaii  case  denies  that 
human  remains,  taken  alone,  have  standing  before  the  law,  though  courts  have  permitted 
suits  to  be  filed  on  behalf  of  animals  and  ecosystems.  Human  remains  are,  by  definition, 
dead  in  Western  belief  systems.  The  law  is  based  on  Western  belief  systems.  Traditional 
Native  Hawaiaan  beliefs  contradict  this  position  since  traditional  Native  Hawaiaan  beliefs 
take  human  remains  to  be,  in  a  very  real  sense,  alive.  Since  the  dominant  society  makes  the 
rules  it  is  unlikely,  as  borne  out  by  the  Hawaii  ruling,  that  any  court  will  be  willing  to 
accord  human  remains  standing.The  court  did,  as  I  understand  the  ruling,  give  Hui 
Malama  standing  in  the  case  but  it  denied  that  the  remains  themselves  could  have  standing. 
In  short,  it  is  unclear  to  me  whether  or  not  the  court's  decision  requires  additional 
Congressional  action  regarding  guardianship.  I  am  not  clear  that  the  court's  ruling  denied 
guardianship  capacity  on  the  part  of  Hui  Malama.  If  I  have  failed  to  understand  the  ruling 
and  the  court  denied  Hui  Malama  guardianship  capacity  for  these  remains  then  I  would 
support  Congressional  action  that  assures  that  Hui  Malama  and  tribes  have  the  ability  to 
act  as  guardians  over  human  remains  with  which  they  are  affiliated. 

I  appreciate  the  opportunity  to  address  these  issues  and  I  look  forward  to  working  with 
the  Committee  and  Congress  in  any  way  possible  to  assure  the  this  important  law,  aimed 
at  redressing  a  long  history  of  injustice,  be  implemented  effectively,  equitably,  and 
efficiently. 


Ask. 

Daal..  M/nroe 

Exeetrtfre  Director,  Peabody  Essex  Museum 
NAGPRA  Review  Committee  member 


131 


W 


American 
Association 
of 
Museums 


Statement  of 
William  J.  Moynihan,  Ph.D. 

President 
Milwaukee  Public  Museum 


On  the  Native  American  Graves 

Protection  and  Repatriation  Act 

(P.L.  101-601) 


Presented  to  the 

Committee  on  Indian  Affairs 

U.S.  Senate 

December  6,  1995 


132 


Mr  Chairman  and  members  of  the  Committee  I  am  William  J  Moynihan,  Ph.D., 
President  of  the  Milwaukee  Public  Museum,  presenting  written  testimony  on  behalf  of  my 
institution  and  on  behalf  of  the  American  Association  of  Museums 

As  you  know,  in  1990  Congress  passed  and  President  Bush  signed  the  Native 
American  Graves  Protection  and  Repatriation  Act  (PL  101-601  -  "NAGPRA")  NAGPRA 
is  remedial  legislation  enacted  by  Congress  to  ensure  that  Native  American  remains,  funerary 
and  certain  other  classifications  of  objects  retained  by  the  federal  government  and  by  the 
museum  community  are  returned  under  the  law  to  appropriate  tribes  and  organizations  for 
reburial  or  other  appropriate  care 

The  Milwaukee  Public  Museum  is  committed  to  fulfilling  both  the  letter  and  the 
spirit  of  NAGPRA  This  commitment  is  reflected  in  museums  across  this  nation  It  is  the 
law  of  the  land,  it  is  accepted  by  the  museum  community,  and  we  in  the  museum  world  have 
benefited  from  new  and  productive  relationships  with  Native  American  groups  as  a  result  of 
NAGPRA 

Allow  me  now  a  moment  to  describe  the  implementation  of  NAGPRA  at  the 
Milwaukee  Public  Museum  as  one  specific  example  from  the  museum  community  We  are  a 
mid-sized  natural  history  museum  with  a  budget  $8  million,  an  FTE  staff  of  135,  and 
collections  of  approximately  4.5  million  specimens  and  artifacts,  with  an  especially  strong 
collection  of  Native  American  material 

Our  most  recent  permanent  exhibit.  "A  Tribute  to  Survival,"  portrays  a  modern  day 
powwow  and  has  a  strong  Native  American  voice  and  interpretation  within  the  exhibit  It  is 
a  source  of  pride  for  area  tribes  to  such  an  extent  that  a  local  Native  American  group 
contributed  $250,000  to  this  project,  and  numerous  individuals  from  the  community  were 
involved  in  the  development  of  its  content  and  approach 

Since  NAGPRA  was  enacted,  the  Milwaukee  Public  Museum,  previously  a 
department  of  Milwaukee  County,  became  a  not-for-profit  organization  with  its  own  Board 
of  Directors  Our  funding  from  Milwaukee  County  decreased  by  $15  million  between  1990 
and  the  present,  and  the  Museum  ran  large  deficits  in  1992  and  1993  The  level  of  staffing 
has  been  reduced  27%  since  NAGPRA  was  enacted  (between  1990-1995),  budgets  were  cut, 
and  programs  lost.  It  is  within  this  budgetary  context  that  the  Museum's  extraordinary 
efforts  to  implement  NAGPRA  need  to  be  understood  and  judged 

Our  most  recent  estimates  show  that  the  Milwaukee  Public  Museum  will  have 
committed  well  in  excess  of  half  a  million  dollars  by  1997  to  deal  with  this  legislation 
Existing  staff  in  our  Anthropology/History  Section  have  been  reallocated  from  their  normal 
duties  to  NAGPRA-related  activities,  a  large  team  of  volunteers  assembled,  and  trained 
student  interns  and  work -study  students  hired 


133 


The  task  has  been  a  daunting  one  The  Museum  has  been  collecting  anthropological 
and  archeological  material  for  over  100  years  The  collections  include  approximately  50,000 
catalogued  items  in  the  North  American  archaeology  area  and  22,000  in  the  North  American 
ethnology  area    The  remains  of  1 ,500  individuals  are  included 

Furthermore,  the  collections  are  not  computerized,  although  efforts  continue  to  secure 
the  necessary  funding  The  records  are  uneven  and  extremely  varied,  reflecting  changing 
professional  standards  over  the  113-year  history  of  the  institution  Several  moves  in  the 
history  of  the  Museum  have  taken  their  toll  on  the  records  as  have  the  ravages  of  time. 
Finally,  this  major  effort  was  initiated  at  a  time  when  the  staff  reductions  and  budget  cuts 
previously  mentioned  were  at  their  most  severe 

Even  given  these  difficult  circumstances,  the  level  of  accomplishment  at  the  Museum 
in  implementing  NAGPRA  is  laudatory  Much  has  been  accomplished,  and  I  would 
emphasize  more  than  anything  else  the  positive  and  productive  relationships  between  the 
museum  and  Native  American  groups  which  have  resulted  from  this  entire  process  In 
addition 

-A  physical  inventory  of  over  22,000  Native  American  ethnographic  objects  in  the 
collections  was  completed  prior  to  the  November  16,  1993  deadline, 

-  A  preliminary  inventory  of  the  50,000  archaeological  objects  was  conducted; 

-Letters  were  sent  to  several  hundred  tribes  by  July  1993  notifying  them  that  the 
Museum  held  material  attributed  to  their  tribal  group  and  that  they  could  expect 
summaries  to  be  sent  by  the  November  16,  1993,  deadline; 

-Further  research  and  phone  contacts  were  used  to  identify  the  tribal  affiliations  of 
specific  reservations  or  combined  Native  American  communities  when  they 
could  not  be  identified  through  Bureau  of  Indian  Affairs  and  National  Park 
Service  Lists; 

-Summaries  of  Native  American  collections  were  sent  to  572  federally  recognized 
tribes  and  native  Alaskan  and  Hawaiian  groups  before  the  November  16,  1993, 
deadline    These  summaries  included  a  description  of  the  objects,  categories,  date  of 
acquisition  by  the  museum,  number  of  objects,  and  a  list  of  any  material  originating 
in  a  tribe" s  general  region  but  for  which  the  Museum  lacked  specific  provenance 
information 

-Phone  calls  were  made  to  several  hundred  tribes  to  make  sure  the  summaries  had 
been  received,  to  deal  with  any  questions  and  to  establish  a  human  contact 

Since  November  1993,  work  on  NAGPRA  has  continued  and  even  intensified  Our 
staff  has  responded  to  numerous  letters  and  telephone  inquiries  from  tribes  regarding  their 
summary  letters     Detailed  packets  of  information  have  been  sent  to  tribal  representatives 


134 


We  have  gone  beyond  the  requirements  of  the  law  by  providing  written  documentation, 
photographs  or  drawings,  and  complete  descriptions  of  objects  as  we  have  consulted  with 
Native  American  groups  This  has  helped  build  a  sense  of  credibility  and  confidence  in  our 
relationships  with  the  tribes  The  actual  visits  have  been  cordial  and  successful,  and  have 
given  us  a  new  understanding  of  the  collections,  but  they  have  also  been  very  time 
consuming  for  the  staff  The  staff  has  drawn  upon  this  experience  to  make  presentations  to 
other  museum  professionals  at  meetings  of  the  Midwest  Museums  Conference  and  the 
American  Association  of  Museums,  and  has  advised  other  museums  of  appropriate 
consultation  methods  and  tribal  visits. 

During  this  time,  the  Milwaukee  Public  Museum  has  also  taken  a  leadership  role  in 
providing  to  tribal  museums  not  only  advice  on  the  care  of  collections,  and  on  building  and 
improving   their   museums,    but    also    professional    training   for   staff  As    museum 

professionals,  we  feel  a  responsibility  to  the  collections  and  their  preservation,  no  matter 
who  holds  them 

The  major  focus  of  staff  time  since  1993  has  been  on  the  inventory  of  the  North 
American  archaeology  collection,  including  human  remains  and  associated  funerary  objects. 
This  task  proved  to  be  even  more  complex  than  the  previous  work  The  first  step  was  a 
conventional  physical  inventory  to  ascertain  the  status  of  the  archaeological  collections  in 
storage,  on  exhibit,  and  on  loan,  in  comparison  to  existing  catalogue  records  Since  the 
material  was  collected  over  a  100  year  period,  it  was  not  organized  according  to  any  single 
system.  Some  of  the  collections  were  organized  by  locality,  for  example,  where  the  only 
provenance  was  "Wisconsin  "  Others  were  grouped  by  type  or  broad  regional  traditions, 
such  as  "Old  Copper  Culture  "  And,  of  course,  the  collections  were  not  computerized 

The  staff  then  turned  to  a  total  physical  inventory  of  the  archaeology  collections  — 
compiling  detailed  lists  of  contents  of  each  drawer  in  storage,  checking  collections  records, 
and  verifying  and  correcting  our  records  Because  of  the  poor  state  of  records  in  this  area  of 
the  collections,  an  enormous  amount  of  time  has  been  spent,  but  we  do  want  to  retain  our 
credibility  with  Native  American  groups  by  providing  complete  and  accurate  information  at 
the  end  of  this  phase  of  the  NAGPRA  requirements 

Despite  our  good  faith  efforts  —  some  might  say  because  we  did  more  than  minimally 
required  by  the  law  -  and  because  of  the  size  and  condition  of  the  archaeological  collection, 
we  have  applied  to  the  National  Park  Service  for  an  extension  of  the  November  16,  1995 
deadline  for  the  completion  of  inventories  of  human  remains  and  associated  funerary 
objects,  and  the  consultation  process  which  follows 

The  Milwaukee  Public  Museum,  like  the  museum  community  in  general,  has  also 
been  hampered  in  its  progress  by  the  delay  in  the  publication  of  the  final  regulations  Since 
passage  of  NAGPRA,  five  years  -  and  both  NAGPRA  deadlines  -  have  passed  and  we  still 
do  not  have  final  regulations  This  has  left  us  in  an  ambiguous  situation,  not  knowing  if  we 
are,  in  fact,  in  full  compliance  and  spending  a  great  deal  of  time  consulting  with  colleagues 
at  other  institutions  to  determine  consistent  interpretations  and  definitions  of  the  law    Even 


135 


the  most   basic  definitions  ~  such  as  what  constitutes  a  "tribe"  -  have  changed  in  the  draft 
regulations  and  will  have  important  implications  to  us  when  finally  determined 

Let  me  say  a  few  words  about  the  national  situation  In  1994,  the  American 
Association  of  Museums  surveyed  500  of  its  member  institutions,  including  all  of  its  natural 
history  museums  and  a  selected  sample  of  its  art  and  history  museums  The  survey  response 
rate  was  43  6%  Of  those  responding,  76%  of  the  natural  history  museums,  43%  of  the 
history  museums  and  23  %  of  the  art  museums  had  Native  American  objects  Those 
respondents  ~  a  little  more  than  200  —  alone  had  almost  3  5  million  objects  which  fell  into 
NAGPRA  categories,  and  that  does  not  include  15  responding  natural  history  museums, 
including  three  large  institutions,  which  could  not  give  an  estimate  of  their  NAGPRA-related 
holdings  An  overwhelming  number  of  these  institutions  suggested  that  a  national  clearing- 
house be  established  for  such  information  as  lists  of  tribes  -  with  examples  of  what  those 
tribes  consider  to  be  sacred  objects  or  objects  of  cultural  patrimony  —  and  lists  of  experts 
who  can  be  consulted,  as  well  as  noting  how  the  lack  of  final  regulations  and  of  NAGPRA 
grant  funding  has  hindered  or  prevented  their  repatriation  efforts. 

All  sizes  of  institutions  showed  large  numbers  of  objects  Among  small  history 
museums,  65  responded,  with  31  affected  This  is  in  a  context  of  4,500  history  museums 
nationally,  of  which  90%  are  small 

Estimating  aggregate  costs  is  not  possible  from  the  survey  data,  given  the  great 
disparities  in  how  institutions  calculated  their  own  costs  It  is  clear,  however,  that  thousands 
of  institutions  across  the  country  are  affected  to  some  degree  by  NAGPRA  costs. 

We  understand  that  the  Native  American  community  is  also  incurring  major  expenses 
in  attempting  to  comply  with  the  requirements  and  deadlines  of  NAGPRA. 

In  closing,  1  respectfully  submit  that  there  are  two  major  impediments  now  faced  by 
museums  and  by  Native  American  tribes  and  organizations  in  carrying  out  the  intent  of 
Congress  First,  the  long-delayed  regulations  have  still  not  been  published  in  final  form  as 
this  testimony  was  being  written,  although  1  understand  that  such  publication  may  be 
imminent  There  are  great  complexities  in  the  implementation  of  NAGPRA,  and  many 
ambiguities  Museums  and  Native  American  groups  need  the  final  regulations  I  would 
respectfully  request  that  the  Committee  encourage  the  Administration  finally  to  issue  the 
regulations 

Second,  museums  and  the  Native  American  community  have  faced  great  costs  in 
implementing  NAGPRA  In  the  case  of  the  Milwaukee  Public  Museum,  and  in  many  other 
cases,  this  burden  has  come  at  a  time  of  budget  and  staff  reductions  The  Congressional 
Budget  Office  in  1990  estimated  NAGPRA  would  cost  museums  $40  million  and  Native 
American  tribes  and  organizations  between  $5-10  million  over  five  years  We  now  know 
from  experience  that  these  estimates  were  too  low  The  $2  3  million  now  competitively 
available  to  museums  and  Native  American  groups  through  the  National  Park  Service's 
NAGPRA  grant  program  does  not  come  close  to  providing  the  supplemental  support  needed 


136 


to  implement  NAGPRA.  For  example,  I  understand  that  the  National  Park  Service  awarded 
83  NAGPRA  grants  totaling  $4.37  million  for  fiscal  years  1994  and  1995,  but  in  doing  so 
they  received  337  grant  proposals  requesting  just  short  of  $30  million  In  the  case  of  the 
Milwaukee  Public  Museum,  no  federal  funds  have  been  awarded  In  light  of  these  facts,  I 
would  respectfully  request  that  the  Committee  urge  the  Department  of  Interior  to  increase  its 
budget  request  annual  funding  at  least  to  the  level  of  $10  million  per  year 

Thank  you  for  this  opportunity  to  testify      I  would  be  happy  to  respond  to  any 
questions  you  might  have 


137 


V 


American 
Association 
of 
Museums 


September  27,  1995 


The  NAGPRA  Review  Committee 

c/o  Archaeological  Assistance  Division 

National  Park  Service 

Box  37127,  Suite  120 

Washington,  DC   20013-7127 

Dear  Review  Committee  Members : 

The  American  Association  of  Museums,  which  represents  the  full 
range  of  the  nation's  museums,  including  natural  history, 
history,  art  and  other  kinds  of  museums  with  NAGPRA-related 
holdings,  appreciates  the  opportunity  to  comment  on  the  Review 
Committee's  current  draft  recommendations  on  the  disposition  of 
culturally  unidentifiable  human  remains  and  associated  funerary 
objects.   The  Review  Committee  and  the  National  Park  Service  have 
been  very  conscientious  about  soliciting  a  wide  range  of 
interested  opinions  on  this  and  other  NAGPRA  issues,  and  the 
museum  community  has  been  grateful  for  these  opportunities. 

First  I  would  like  to  make  some  general  comments.   It  is 
particularly  important  that  the  Review  Committee  has  been  open  to 
comment  because  of  the  background  of  NAGPRA.   As  you  know,  the 
creation  of  NAGPRA  initially  created  great  controversy,  and  the 
final  result,  arrived  at  by  difficult  and  detailed  negotiations 
of  the  affected  parties  and  Congress,  was  a  compromise  with  which 
no  party  was  perfectly  pleased  but  with  which  all  parties  could 
abide.   Central  to  that  delicately  balanced  compromise- -where 
virtually  every  word  was  weighed,  and  key  terms  carefully 
defined--was  an  encouragement  in  many  places  in  the  law,  a 
preference,  for  tribes  and  museums  to  work  out  their  own 
arrangements  via  mutual  consultations. 

Given  this  background,  the  museum  community  has  cause  for  concern 
in  some  of  the  assumptions  and  other  elements  in  the  current 
draft  recommendations. 


1225  Eye  Street 

Northwest  Telephone 

WashmgtonDC  (202)289-1818 

20005  FAX  (202)  289-6578 


138 


General  issues. 

1 .  Disposition  of  culturally  "unidentifiable  human  remains." 
As  the  draft  recommendations  point  out,  the  disposition  of 
culturally  unidentifiable  human  remains  is  left  open  in 
NAGPRA.   It  also  seems  clear  in  the  law  that  control  of 
human  remains  and  associated  funerary  objects  will  go  to 
culturally  affiliated  tribes  and  lineal  descendents . 

However,  the  very  silence  of  the  framers  of  the  law  on  the 
ultimate  disposition  of  unidentifiable  human  remains, 
contrasted  to  the  explicit  rules  for  identifiable  human 
remains,  is  important.   Proper  respect  for  human  remains  is 
not  at  issue  here.   Where  cultural  or  lineal  affiliation  can 
be  made  under  the  terms  of  the  law,  the  law  seems  to  assume 
that  respect  can  best  be  paid  by  those  so  affiliated. 

Where  that  cultural  affiliation  or  lineal  descent  cannot 
be  determined,  and  especially  in  the  case  of  ancient 
peoples,  the  situation  becomes  more  complex.   Different 
tribes  currently  existing  have  widely  differing  rules  for 
the  proper  treatment  of  the  dead;  adding  the  dimension  of 
the  cultural  practices  of  tribes  existing  in  the  past  adds 
to  the  complexity.   Under  these  circumstances,  it  is  easily 
possible  to  see  a  situation  where  human  remains  might  be 
interred  in  complete  contradiction  to  the  cultural  beliefs 
of  the  interred.   Whose  rules  should  prevail? 

This  is  not  to  deny  the  appropriateness  of  Native  American 
consultation  on  this  issue  but  to  say  that  the  current 
general  statement  in  the  draft  that  final  disposition  of 
unidentifiable  human  remains  rest  with  unspecified  Native 
Americans  should  be  set  aside  for  the  moment  and  more 
thought  be  give  to  the  details  of  this  issue  in  a  subseguent 
draft. 

It  may  be  that  this  issue,  as  in  many  places  elsewhere  in 
the  law,  should  be  resolved  on  a  case-by-case  basis  between 
museums  and  tribes.   It  may  also  be  useful  for  the  Review 
Committee  explicitly  to  encourage  exhaustion  of  all  means 
of  establishing  cultural  affiliation  or  lineal  descent, 
including,  for  example,  DNA  testing  of  remains  compared  to 
current  human  populations,  that  do  not  contravene  important 
religious  principles  of  what  are  the  most  likely  related 
groups,  to  attempt  to  move  as  many  cases  as  possible  from 
the  unidentifiable  to  the  identified  category. 

2 .  Disposition  of  funerary  objects  associated  with  culturally 
unidentifiable  human  remains.   Again,  an  important  way  of 
dealing  with  this  issue  would  be  explicitly  to  encourage  the 
use  of  all  means  of  establishing  cultural  affiliation  of  the 


139 


human  remains  consistent  with  Native  American  practices  as 
noted  above.   This  would  remove  as  many  of  the  associated 
funerary  objects  as  well  as  the  human  remains  into  the 
categories  already  covered  by  the  law. 

For  the  remainder—those  funerary  objects  associated  with 
human  remains  which  truly  cannot  be  culturally 
identif ied--we  believe  that  additional  legislation  would  be 
necessary,  as  the  draft  suggests  may  be  so.   As  noted  above, 
the  f ramers '  silence  in  this  area  implies  intent:  while 
associated  funerary  objects  and  human  remains  are  elsewhere 
explicitly  mentioned  together,  the  law  does  not  mention 
associated  funerary  objects  when  discussing  unidentifiable 
human  remains,  and  neither  the  law  nor  regulations  requires 
their  inclusion  in  inventories. 


The  effect  of  the  current  draft  recommendations  on 
consultation  between  the  tribes  and  museums.   As  noted 
above,  a  central  element  in  many  parts  of  the  law  is  the 
encouragement  of  consultations  between  the  tribes  and 
museums  in  the  NAGPRA  process,  and  encouragement  of 
agreements  for  disposition  which  flow  from  such 
consultations.   The  effect  of  much  of  the  Review  Committee's 
current  draft  recommendations  would  be  to  centralize  more 
the  decision  making  in  Washington  than  seems  contemplated  in 
the  law.   Such  consultations  are  vital  not  only  for  the 
operation  of  the  law  but  for  strengthening  and  maintaining  a 
two-way  flow  of  knowledge  between  museums  and  tribes  and  for 
increased  understanding  of  Native  American  culture. 

For  example,  in  the  discussion  of  ancient  remains  (pp.  4-5, 
section  2),  the  Review  Committee,  not  museums,  would  take 
responsibility  for  notifying  tribes  potentially  affiliated. 
Similarly,  creation  of  National  Park  maps  ("procedures  for 
identification  of  potential  claimants,"  option  1)  again 
undercuts  the  authority  of  museums  and  tribes. 

We  would  ask  that  subsequent  drafts  of  the  recommendations 
be  surveyed  with  an  eye  to  enhancing  rather  than  diminishing 
opportunities  for  such  consultations. 


Regional  cemeteries  or  mausoleums'.   A  potential  drawback 
here  is  that  these  might  prevent  the  possibility  of  some 
current  or  future  scientific  process,  such  as  DNA  testing, 
from  being  used,  with  the  consensus  of  proper  parties,  to 
determine  true  affiliation.   (Use  of  such  evidence  has,  in 
recent  years,  provided  a  very  strong  "voice  for  the  dead"  in 
many  criminal  trials.) 


140 


Draft  Procedures. 

These  procedures  assume  the  return  of  unidentifiable  remains 
and  objects.   We  think  that  that  assumption  needs  further 
thought,  for  the  reasons  noted  above.   However,  if  the  Review 
Committee  were  to  move  forward  with  procedures,  the  following 
options  would  be  preferable. 

Procedures  for  identification  of  potential  claimants.   Option  2 
seems  an  overbroad  and  huge  effort,  to  which  many  tribes  will 
like]y  not  have  the  manpower  or  funds  to  respond.   We  prefer 
Option  1,  although  creation  of  the  NPS  maps  may  be  very 
difficult,  and  it  would  be  better  to  find  another  way  to 
accomplish  the  purpose  that  would  put  museums  and  tribes  back 
into  the  center  of  decisions.   After  steps  1  and  2  of  Option  1, 
the  tribes  should  request  repatriation  from  museums  and  Federal 
agencies,  not  the  National  Park  Service—again  to  maximize  the 
ongoing  consultation  opportunities. 

Procedures  for  reviewing  claims.   Again,  Option  2  is  clearly 
preferable  since  it  maximizes  the  chances  for  consultation 
between  museums  or  Federal  agencies  and  the  tribes,  as 
contemplated  elsewhere  in  the  law. 

Procedures  for  making  repatriations  to  Native  American  groups 
without  BIA  recognition.   As  noted  in  the  draft  recommendations, 
the  term  "Indian  tribe"  for  the  purposes  of  the  Act  includes 
groups  "eligible  for  the  special  programs  and  services  provided 
by  the  United  States  to  Indians  because  of  their  status  as 
Indians,"  and  the  Department  of  the  Interior  has  interpreted  that 
as  equivalent  to  groups  formally  recognized  by  the  Bureau  of 
Indian  Affairs  as  "tribes."   This  existing  definition  and 
interpretation  affects  not  only  culturally  unidentifiable  human 
remains  but  all  other  aspects  of  the  application  of  the  law. 
Thus,  to  open  up  the  definition  for  the  purpose  of  dealing  with 
culturally  unidentifiable  human  remains  would  be  to  open  up  many 
other  issues,  including  museums'  potential  liability  for  breach 
of  public  trust  for  recognizing  groups  outside  the  law. 

Yet  the  Committee  points  out  an  important  situation:  where  "There 
are  remains  that  can  be  directly  traced  by  a  preponderance  of  the 
evidence  to  tribes,  villages,  communities  of  Native  Americans 
that  may  not  be  formally  recognized  by  the  Bureau  of  Indian 
Affairs  as  'Tribes.'   In  these  cases,  the  remains  are  only 
•unidentifiable'  because  of  the  wording  of  the  Act." 

In  such  a  situation,  the  affected  tribe  could  be  encouraged  to 
apply  for  formal  recognition  by  the  BIA.   Barring  that  option,  we 
believe  that  the  law  is  straightforward,  and  going  further  would 
require  a  statutory  change. 


141 


Again,  we  appreciate  the  opportunity  to  comment,  and  we  look 
forward  to  continuing  the  dialogue  about  subsequent  drafts  of  the 
recommendations . 


Sincerely, 


/MsC~ 


>3ason  Y.  Hall 
Director 
Government  and  Public  Affairs 


Nina  Archabal,  AAM  Chair 

Edward  H.  Able,  Jr.,  AAM  President 

Patricia  Williams,  AAM  Vice-President,  Policy  and  Programs 

Andy  Finch,  AAM  Assistant  Director,  Government  and  Public 

Affairs 
Roxanna  Adams,  AAM  Coordinator,  Technical  Information  Service 


142 


W 


American 
Association 
of 
Museums 

January  22,  1996 

The  Honorable  John  McCain 

Chairman 

Committee  on  Indian  Affairs 

United  States  Senate 

Washington,  DC   20510-6450 

Dear  Mr.  Chairman: 

Thank  you  very  much  for  giving  the  museum  community  an 
opportunity  to  testify  at  the  December  6  hearing  on 
implementation  of  the  Native  American  Graves  Protection  and 
Repatriation  Act. 

In  response  to  your  letter  of  December  15,  posing  additional 
questions  for  the  record,  AAM  would  like  to  make  the  following 
comments : 

1.  Question:   Do  you  believe  that  the  Department  of  the 
Interior  adequately  consulted  with  the  museum  community 
during  the  development  of  the  draft  and  Final  regulations? 
Do  you  have  any  comments  on  the  content  of  the  Final 
regulations? 

Answer:   We  believe  that  the  Office  of  Archaeological 
Assistance  at  the  National  Park  Service,  which  is  the  part 
of  the  Department  tasked  with  administering  the  law,  has 
made  extensive  efforts  to  consult  with  the  museum  community 
and  with  the  other  parties  to  the  law.   The  difficulty  has 
not  been  there  but  with  the  slow  pace  of  approval  of  the 
regulations  elsewhere  in  the  Department  and  the 
Administration.   The  final  regulations  are  not  exactly  as  we 
would  have  wanted  them,  but,  as  with  the  underlying  law 
itself,  they  reflect  an  acceptable  compromise  with  which  the 
museum  community  is  prepared  to  comply  so  that  the  process 
mandated  in  the  law  can  go  forward  in  as  timely  a  way  as 
possible . 

2.  Question:   What  is  the  opinion  of  the  American  Association 
of  Museums  regarding  the  disposition  of  unidentified  and 
unclaimed  human  remains?   Do  you  believe  the  Secretary  of 
Interior  should  promulgate  regulations  regarding  this  issue? 

1225  Eye  Street  Telephone 

Northwest  (202)  289-1818 

Washington  DC  FAX  (202)  289-6578 

20005  TTY  (202)  289-8439 


143 


Answer:   As  you  know,  this  is  an  issue  which  has  come 
under  discussion  before  the  NAGPRA  Review  Committee,  which 
has  requested  comments  from  the  chief  parties  to  the  law  on 
an  initial  proposal.   AAM  has  responded  to  Review  Committee 
in  detail;  I  am  enclosing  a  copy  of  those  comments,  for  your 
information.  Given  the  number  of  unresolved  fundamental 
issues  in  this  area  at  this  time,  we  urge  strongly  that  the 
Secretary  not  issue  regulations  on  this  matter  at  this  time 
but  rather,  as  the  Review  Committee  itself  indicated, 
continue  to  try  to  resolve  some  of  these  fundamental  issues 
first . 


Question:   Do  you  know  of  any  case  examples  of  tribes  and 
museums  developing  a  cooperative  agreement  to  protect 
confidential  information  regarding  the  sacredness  of  ritual 
ceremonies  and  objects? 

Answer:   None  has  come  to  our  attention  to  date. 


On  the  questions  regarding  the  Federal  District  Court  case 
Na  Iwi  0  Na  Kupana  0  Mokapu,  Heleloa,  Ulupa'u  A  Me  Kuwa'a'ohe  v, 
John  Dal ton:  ' 


Question:   One  of  the  issues  the  plaintiffs  in  the  action 
raised  was  whether  the  Freedom  of  Information  Act  applies  to 
information  derived  from  the  development  of  the  inventory  of 
Native  Hawaiian  remains  authorized  by  the  Native  American 
Grave  Protection  and  Repatriation  Act.   The  court  found  that 
the  Freedom  of  Information  Act  (FOIA)  applied  to  the 
inventory  information,  and  that  no  exemption  under  FOIA 
would  protect  that  information  from  public  disclosure. 

The  Committee  is  interested  in  securing  your  views  on: 

(1)  whether  such  information,  derived  from  the  NAGPRA 
inventory  process,  should  be  subject  to  public  disclosure; 

(2)  whether  the  Congress  should  act  to  amend  NAGPRA  to 
provide  protection  from  public  disclosure  of  information 
derived  from  NAGPRA  inventories;  (3)  whether  protection  from 
public  disclosure  of  information  derived  from  NAGPRA 
inventories  should  be  limited  in  scope,  and  if  so,  in  what 
respect;  and  (4)  whether  NAGPRA  inventory  information  should 
be  exempted  from  application  of  the  Freedom  of  Information 
Act. 

Answer :   We  believe  that,  consistent  with  NAGPRA  as  it 
stands  and  with  FOIA,  information  derived  from  the  NAGPRA 
inventory  process  should  be  subject  to  public  disclosure, 
and  that  NAGPRA  should  not  be  amended  to  restrict  that 


144 


disclosure,  nor  should  NAGPRA  inventory  information  be 
exempted  from  FOIA.   As  the  Federal  Court  indicates,  the 
presumption  behind  FOIA  is  that  maximum  disclosure  of 
Federal  information  is  in  the  best  interests  of  the  country 
except  in  a  handful  of  specific  cases  laid  out  in  FOIA. 
Thus  there  would  need  to  be  a  very  powerful  public  policy 
reason  to  override  that  intent  in  NAGPRA,  and  that  test  has 
not  been  met. 

In  addition,  we  see  a  logical  problem  in  moving  from 
full  disclosure.   Limiting  information  in  the  inventory  to 
release  to  only  one  "privileged"  tribe  or  group  would  very 
likely  prevent  other  tribes  with  potentially  valid  claims  to 
objects  from  being  able  to  know  that  they  might  claim 
ownership. 

Finally,  we  agree  with  the  Court  that  privacy  tests  are 
not  met  with  repatriable  items,  and  given  that  fact,  there 
are  not  good  reasons  to  amend  NAGPRA  to  become  a 
"withholding  statute"  under  FOIA  definitions,  with  an 
explicit  special  exemption  from  FOIA. 


Question:   Section  3003(a)  of  NAGPRA  requires  each  Federal 
agency  and  each  museum  possessing  Native  American  human 
remains  and  associated  funerary  objects  "to  compile  an 
inventory  of  such  items.,  and  to  the  extent  possible  based  on 
information  possessed. .. identify  the  geographical  and 
cultural  affiliation  of  such  item." 

Section  3003(b)(2)  of  NAGPRA  states  that  upon  request 
of  an  Indian  tribe  or  Native  Hawaiian  organization,  a  museum 
or  Federal  agency  shall  supply  additional  available 
documentation  to  supplement  the  information  required  by 
subsection  (a).   This  subsection  also  defines 
"documentation"  as  meaning  a  summary  of  "existing  museum  or 
Federal  agency  records"  and  further  notes  that  the  term  does 
not  mean,  nor  authorize  "the  initiation  of  new  scientific 
studies  of  such  remains  and  associated  funerary  objects  or 
other  means  of  acquiring  or  preserving  additional  scientific 
information  from  such  remains  and  objects." 

The  district  court  also  ruled  that  "further 
examination"  of  the  remains  was  legally  permissible,  and 
"impliedly  approved"  by  the  Congress,  despite  the  fact  that 
neither  the  geographical  nor  cultural  affiliation  of  the 
remains  was  in  question. 


(a)  In  your  opinion,  does  NAGPRA,  as  currently  enacted, 
sufficiently  address  the  issue  of  necessary  scientific 


145 


studies  which  may  be  initiated  during  the  course  of 
compiling  an  inventory  pursuant  to  NAGPRA? 

Answer :   Yes.   As  the  Court  found,  Congress  explicitly 
anticipated,  and  left  considerable  room  for,  studies  prior 
to  completion  of  the  inventory  to  aid  in  the  inventory 
process,  and  the  law  also  provides  in  Sect  11(1) (B)  for 
agreements  between  culturally  affiliated  tribes  and  museums 
on  the  repatriation  process  which  could  include  agreements 
on  scientific  studies. 

(b)  NAGPRA  defines  neither  "inventory"  nor  "scientific 
studies"  nor  "scientific  information."   Do  you  believe  that 
such  definitions  may  be  warranted,  given  the  district 
court's  ruling? 

Answer:   No.   "Inventory"  is  defined  already  in  Sect  5(e), 
and  "scientific  studies"  and  "scientific  information"  are 
sufficiently  clear,  while  additional  attempts  to  define  the 
terms  legislatively  would  complicate  the  implementation  of 
the  law.   If  further  refinements  of  definitions  become 
necessary  as  specific  circumstances  arise,  the  NAGPRA  Review 
Committee  could  recommend  them,  in  consultation  with  the 
museum  and  tribal  communities,  as  part  of  its  duties  under 
NAGPRA  to  help  make  the  process  work. 

(c)  In  your  opinion,  under  what  circumstances,  if  any, 
would  further  scientific  studies,  either  during  the  course 
of  compilation  of  an  inventory  or  after  the  conclusion  of 
such  an  inventory,  be  warranted? 

Answer :   We  do  not  think  that  a  comprehensive  list  of  when 
such  studies  may  be  necessary  can  be  compiled  at  this  time. 
Circumstances  which  no  one  can  currently  anticipate  are 
likely  to  arise  as  the  repatriation  process  continues. 
However,  such  a  list  would  include  cases  where  other 
practical  means  of  establishing  cultural  affiliation  had 
been  exhausted;  where  the  process  created  by  the  law  could 
not  otherwise  move  forward,  as  in  the  case  considered  by  the 
Court;  and  where  the  culturally  affiliated  tribe  and  the 
museum  had  agreed  that  the  studies  should  proceed, 
consistent  with  Sect  11(1) (B).   Again,  any  clarification 
which  might  be  needed  here  would  probably  best  be  undertaken 
by  the  NAGPRA  Review  Committee,  in  consultation  with  tne 
museum  and  tribal  communities. 


3.  Question:   The  plaintiffs  in  the  action  also  sought  to 
assert  protection  for  Native  Hawaiian  human  remains  in  a 


146 


guardianship  capacity,  but  the  district  court  found  that 
NAGPRA  does  not  authorize  legal  actions  in  that  capacity. 

In  your  view,  should  the  Congress  amend  the  Act  to 
provide  authority  for  legal  actions  to  be  brought  by  those 
who  may  gualify  to  serve  as  guardians  for  purposes  of 
invoking  the  protection  of  the  Act  on  behalf  of  Native 
American  human  remains? 

Answer:   No.   There  are  legal  conseguences  that  would 
arise  for  other  bodies  of  law  where  guardianship  has  been 
defined.   In  addition,  there  would  be  an  important  logical 
problem:  how  would  one  determine  who  would  have  standing  as 
guardians,  especially  where  there  are  multiple  claims  for 
repatriation?   Finally,  as  the  District  Court  points  out, 
even  if  Congress  granted  guardianship  in  NAGPRA,  the  human 
remains  would  still  not  have  legal  standing  under  common  law 
reguirements,  and  without  such  standing,  as  the  Court  notes, 
"discussion  of  about  any  kind  of  guardianship. .. is  moot." 

The  museum  community  appreciates  the  Committee's  interest  in 
seeing  that  the  implementation  of  NAGPRA  proceeds  as  effectively 
as  possible  and  for  the  opportunity  to  comment  on  these  guestions. 

Sincerely, 


^W*l 


ason  HaZ/I 
Director 
Government  and  Public  Affairs 


Edward  H.  Able,  Jr.,  AAM  President  and  CEO 

Nina  Archabal,  AAM  Chair 

Dan  Monroe,  Immediate  Past  AAM  Chair  and  Member,  NAGPRA 

Review  Committee 
William  Moynihan,  President,  Milwaukee  Public  Museum 
Patricia  Williams,  AAM  Vice  President,  Policy  and  Programs 
Roxana  Adams,  AAM  Coordinator,  Technical  Information  Service 
Andy  Finch  and  Kristi  Walker,  AAM  Government  and  Public 

Affairs  staff 


(with  incoming  letter) 


147 

STATEMENT  OF  TESSIE  NARANJO,  MEMBER  and  CHAIRPERSON, 
REVIEW  COMMITTEE,  NATIVE  AMERICAN  GRAVES  PROTECTION  AND 
REPATRIATION  ACT,  BEFORE  THE  SENATE  COMMITTEE  ON  INDIAN 
AFFAIRS  REGARDING  THE  STATUS  OF  IMPLEMENTATION  OF 
NAGPRA 

December  6,  1995 
I  am  Tessie  Naranjo  an  Indian  person  from  Santa 
Clara  Pueblo,  New  Mexico.  I  appreciate  the  opportunity 
to  offer  testimony  as  member  and  Chairperson  of  the 
National  Review  Committee  for  NAGPRA. 

The  individuals  selected  in  Spring  1992  to  serve 
as  Review  Committee  members  have  worked  for  four  years 
meeting  at  least  twice  each  year  working  on  various 
aspects  of  NAGPRA  such  as  refining  the  Regulations 
which  implement  the  statute.  These  Regulations  have 
just  been  published  in  the  Federal  Register.  Other 
activities  of  the  Review  Committee  include  consider- 
ation of  five  dispute  cases,  oral  testimony  from  93 
individuals  during  1992-1994,  many  of  whom  represented 
Indian  tribe3  or  are  of  Indian  descent.  At  our  last 
meeting  in  Anchorage,  Alaska,  October  16-18  of  this 
year,  we  discussed  the  120  written  comments  received  on 


148 

our  draft  recommendations  regarding  the  disposition  of 
Culturally  Unidentifiable  Human  remains  and  Associated 
Funerary  Objects. 

We  have  experienced  frustrations  over  a  number  of 
issues.  These  frustrations  and  concerns  became  the 
recommendations  in  our  1993/1994  Report  to  Congress. 
What  I  wish  to  do  now  is  summarize  these 
recommendations: 

1.  That  Congress  clarify  the  meaning  of  "Indian 

Tribe"  within  NAGPRA  in  order  to  permit  Native 
American  groups  not  presently  recognized  by 
the  Department  of  Interior  Bureau  of  Indian 
Affairs  to  repatriate  their  human  remains, 
funerary  objects,  sacred  objects,  or  objects 
of  cultural  patrimony, 

2.  That  Congress  appropriate  at  least  $10  million 

for  FY96  to  help  Indian  tribes,  Native 
Hawaiian  organizations,  museums,  and 
universities  in  complying  with  NAGPRA 
directives. 


149 

3.  That  Congress  take  steps  to  assure  that  the 

Smithsonian  complies  with  all  NAGPRA 
requirements. 

4.  That  Congress  consider  legislation  to  protect 

Native  American  and  Native  Hawaiian  graves 
located  on  state  or  private  lands  from  grave 
robbing  and  other  kinds  of  destruction. 
I  wish  now  to  make  comments  with  regard  to 
funding.  For  FY1994  and  FY1995,  the  total  amount  of 
NAGPRA  grants  was  under  five  million  dollars  and  the 
total  request  from  tribes  and  museums  was  thirty 
million  dollars.  The  number  of  grant  requests  will 
increase  with  this  coming  Fyl996  grant  applications. 
We  need  increased  funding  for  the  grant  program. 

Increased  funding  is  also  needed  for  the  costs 
involved  in  Federal  Register  notices  due  to  the 
increased  number  of  inventory  notices  of  Human  remains 
and  Associated  Funerary  Objects.  One  of  the  effects 
will  be  the  inundation  of  work  related  to  the 
documentation  of  these  inventories  of  human  remains  by 


150 

the  NAGPRA  administrative  staff  and  the  Review 
Committee. 

We  expect  that  as  the  inventory  notices  increase 
the  number  of  disputes  will  rise.  Disputes  always 
prolong  conflicts  and  involve  the  time  of  the  limited 
NAGPRA  staff.  It  also  requires  more  consideration  of 
dispute  hearings  by  the  Review  Committee. 

Additionally,  more  funding  is  needed  by  the  NAGPRA 
staff  to  implement  the  Civil  Penalties  section 
currently  being  reviewed  by  the  Department.  This 
section  deals  with  those  individuals  and  institutions 
who  are  in  non-compliance.  Investigative  work  is  a 
crucial  process  in  determining  non-compliance. 

Our  recommendation  in  our  1993/1994  Report  to 
Congress  was  that  it  appropriate  $10  million  in  FY1996 
to  continue  to  implement  the  Native  American  Graves 
Protection  and  Repatriation  Act.  This  amount  is 
absolutely  essential  if  we  are  to  effectively  carry  out 

the  intent  of  NAGPRA, 

1 
Lastly,  Mr.  Chairman  I  want  to  make  mention  that 

the  Keepers  of  the  Treasures,  a  national  organization 


151 

promoting  cultural  preservation  of  tribes  is  in  support 
of  the  efforts  of  the  NAGPRA  staff  and  the  Review 
Committee  and  supports  our  request  for  $10  million  for 
FY  1996.  Thank  you. 


152 


February  1996 

Questions  by  Senator  John  McCain,  Chairman,  Senate 
Select  Committee  on  Indian  Affairs,  responses  by  Tessie 
Naranjo,  Chairperson,  Native  American  Graves  Protection 
and  Repatriation  Act. 

1)  Do  you  feel  that  the  Review  Committee  and  the 
Department  of  Interior  adequately  consulted  with  Indian 
tribes  during  the  process  of  developina  the  final 
regulations  to  implement  the  Act? 

Yes.   The  Review  Committee  has  held  a  total  of  ten 
meetings  since  April.  1992.  We  deliberately  held  these 
meetings  around  the  country  to  give  an  opportunity  for 
tribal  people  to  attend  Review  Committee  meetings  and 
to  make  comments  about  NAGPRA  concerns.  Additionally, 
several  draft  regulationss  were  sent  directly  to  tribes 
for  comments. 

la)   What  specific  efforts  have  been  taken  by  the 
Department  to  consult  with  Indian  tribes  in  the 
development  of  these  regulations? 

-Review  Committee  meetings  provided  an  opportunity 
for  testimonies  from  tribes. 

-As  draft  regulations  were  completed  these  were 
distributed  to  Indian  tribes  for  comments. 

2)  Can  you  provide  to  the  Committee  a  summary  of  the 
five  dispute  cases  that  you  referenced  in  your 
testimony? 

1.  Univ. Calif.,  Hearst  Museum  vs  Hui  Malama 

2.  Marine  Corps  vs  Hui  Malama  and  others 

3.  Oneida  vs  Oneida  vs  Chicago  Field  Museum 

4.  Santanta  descendants  vs  Univ. Calif,  Hearst 


153 


3)  Following  four  questions  related  to  the  Federal 
District  case,  Na  Iwi  0  Na  Kupuna  0  Mokapu,  Heleloa, 
Ulupa'u  A  Me  Kuwa'a'ohe  vs  John  Dal  ton: 

a)  Should  such  information,  derived  from  the 
NAGPRA  Inventory  process  be  subject  to  public- 
disclosure? 

Information  derived  from  the  NAGPRA  Inventory 
process  should  not  be  subject  to  public  disclosure. 
This  information  is  basic  and  is  meant  to  give  just 
enough  information  in  order  for  tribes  tc  make 
decisions  about  human  remains. 

b)  Should  Congress  amend  NAGPRA  to  provide 
protection  from  public  disclosure  of  information 
derived  from  NAGPRA  inventories? 

No,  Congress  does  not  need  to  amend  NAPRA  in  order 
to  provide  protection  from  public  disclosure. 

c)  Should  protection  from  public  disclosure  of 
information  derived  from  NAGPRA  inventories  be  limited 
in  scope  and  if  so,  in  what  respect: 

This  question  appears  to  be  another  version  of 
above  question.  My  response  was,  no,  Congress  does  not 
need  to  amend  NAGPRA  to  provide  protection  from  public 
disclosure  of  information 

d)  Should  NAGPPA  inventory  information  be 
exempted  from  the  application  of  the  FOIA? 

No. 

4)   In  your  opinion,  does  NAGPRA,  as  currently  enacted, 
sufficiently  address  the  issue  of  necessary  scientific 


154 


studies  which  may  be  initiated  during  the  course  of  the 
compiling  of  an  inventory  pursuant  to  NAGPA? 

The  law  requires  a  minimum  amount  of  information 
for  inventories  (i.e.,  acquisition  date,  description 
such  as  dimensions  and  antiquity  of  human  remains) . 
This  section  does  not  discuss  the  issue  of  scientific 
studies  but  in  another  section  the  law  says,  scientific 
studies  can  be  conducted  when  it  is  of  "major  benefit 
to  the  U.S.". 

5)  NAGPRA  defines  neither  "inventory"  nor  "scientific- 
studies"  nor  "scientific  information".   Do  you  believe 
that  such  definitions  may  be  warranted  given  the 
district  court's  ruling? 

NAGPRA  defines  "inventory"  as  "..the  item-by  item 
description  of  human  remains  and  associated  funerary 
objects".   Neither  "scientific  studies"  or  scientific 
information"  is  defined  nor  is  it  used  in  the  law  -  no 
definition  is  required. 

6)  In  your  opinion,  under  what  circumstances,  if  any, 
would  further  scientific  studies,  either  during  the 
course  of  compilation  of  an  inventory  or  after  the 
conclusion  of  such  an  inventory,  be  warranted? 

The  law  says  when  it  is  of  major  benefit  to  the 
U.S. 

7)  In  your  view,  should  the  Congress  amend  NAGPRA  to 
provide  authority  for  legal  actions  to  be  brought  by 
those  who  may  qualify  to  serve  as  guardians  for 
purposes  of  invoking  the  protection  of  the  Act  on 
behalf  of  Native  American  human  remains? 

This  is  a  question  which  cannot  be  answered  with  a 
"yes"  or  "no".   Who  is  the  "guardian"? 


155 


TESTIMONY  SUBMITTED  TO  THE 
SENATE  COMMITTEE  ON  INDIAN  AFFAIRS: 


OVERSIGHT  HEARING  ON  IMPLEMENTATION  OF  THE 
NATIVE  AMERICAN  GRAVES  PROTECTION  AND  REPATRIATION  ACT 

PUBLIC  LAW  101-601 


January  18,  1996 


Kunani  Nihipali.  Po'o 


156 


I  am  Po^o    (leader)  of  Hui  Malama  I  Na  KQpuna  *0  Hawai'i  Nei 
(Hui  Malama) ,  a  Native  Hawaiian  organization  dedicated  to  the 
care  and  protection  of  ancestral  Native  Hawaiian  remains.   Our 
kumu   are  Edward  and  Pualani  Kanahele  of  Hilo. 

Pursuant  to  NMAT  and  NAGPRA,  Hui  Malama  has  repatriated  and 
reinterred  ancestral  Native  Hawaiian  remains  and  funerary  objects 
from  the  Smithsonian  National  Museum  of  Natural  History,  Bernice 
Pauahi  Bishop  Museum,  American  Museum  of  Natural  History,  Field 
Museum  of  Natural  History,  University  of  Alaska  Museum,  Brigham 
Young  University  Museum  of  Peoples  and  Cultures,  Milwaukee  Public 
Museum,  San  Diego  Museum  of  Man,  University  of  Pennsylvania 
Museum  of  Archaeology  and  Anthropology,  Sacramento  Science 
Center,  Peabody  Essex  Museum,  University  of  California  Hearst 
Museum,  University  of  Oregon  Museum  of  Anthropology,  Harvard 
Peabody  Museum  of  Archaeology  and  Ethnology,  Yale  Peabody  Museum 
of  Natural  History,  Dartmouth  Hood  Museum  of  Art,  Earlham  College 
Moore  Museum,  and  Los  Angeles  County  Museum  of  Natural  History. 

Internationally,  Hui  Malama  was  repatriated  ancestral  Native 
Hawaiian  remains  and  burial  objects  from  the  Royal  Ontario  Museum 
(Toronto,  Canada),  Universitat  Zurich-Irchel  Anthropologisches 
Institut  Und  Museum  (Switzerland)  and  South  Australian  Museum. 

in  1995,  Hui  Malama  filed  suit  against  the  U.S.  Navy  and 
Bishop  Museum  for  violating  NAGPRA  by  conducting  scientific 
studies  on  over  1,500  ancestral  Hawaiians  thereby  failing  to 
expeditiously  repatriate.   The  remains  originated  from  Mokapu, 
Heleloa,  Ulupa'u  and  Kuwa'a'ohe,  Kovolaupoko  district,  O'ahu. 


157 


Hui  Malama  sought  to  have  the  scientific  information 
recorded  from  these  ancestral  Hawaiians  expunged  from  the  NAGPRA 
inventory  report  published  by  the  Navy.   We  viewed  the  scientific 
studies  as  unnecessary  since  cultural  affiliation  was  already 
known  by  a  reasonable  belief  to  be  Native  Hawaiian,  and  more 
importantly,  as  personal  violations  of  the  integrity  and  sanctity 
of  these  ancestors. 

In  our  view,  the  scientific  studies  were  outright  violations 
of  kanawai  (Hawaiian  law) ,  amounting  to  a  theft  of  mana  (energy) . 
The  law  suit  sought  to  delete  the  scientific  information  in  order 
to  help  restore  that  mana  to  the  ancestors  which  is  necessary  for 
their  spiritual  well  being.  Protection  of  the  mana  of  the  Mokapu 
ancestors  is  part  of  the  responsibility  to  malama    (care  for) . 

However,  the  district  court  found  that  the  conduct  of 
scientific  studies  by  the  U.S.  Navy  on  the  Mokapu  remains  did  not 
violate  NAGPRA  and  instead  is  consistent  with  NAGPRA' s  goal  of 
identifying  remains  for  repatriation.   Moreover,  the  court  said 
Congress  impliedly  approved  further  research  on  human  remains 
during  the  inventory  in  order  for  museums  and  federal  agencies  to 
better  comply  with  NAGPRA' s  identification  and  repatriation 
requirements. 

The  court  ruled  that  the  Mokapu  inventory  is  subject  to  the 
disclosure  requirements  of  the  Freedom  of  Information  Act 
("FOIA")  as  none  of  the  FOIA  exemptions  were  applicable.   The 
court  found  that  NAGPRA  does  not  contain  any  language  evincing  a 
legislative  intent  to  limit  disclosure  of  inventory  information. 


23-074  96-6 


158 


The  court's  ruling  will  allow  unnecessary  desecration  of 
ancestral  Hawaiian  remains  already  disturbed  from  sacred  burial 
Bites.   The  adverse  effect  on  the  living  includes  placement  of  a 
heavier  burden  on  those  who  accept  the  responsibility  to  malama  i 
nS  iwi   kupuna    (care  for  the  ancestral  bones) . 

As  a  result  of  the  court's  decision,  Hui  Malama  offers  the 
following  recommendations  for  the  Committee's  consideration. 
These  recommendations  are  intended  to  further  strengthen  the 
civil  rights  nature  of  this  important  legislation. 
I .    The  Role  of  Scientific  Study  Must  Be  Clarified 

NAGPRA  should  be  clarified  to  state  that  where  existing 
documentation  establishes  geographic  location  and  cultural 
affiliation  either  by  clear,  reasonable  belief,  or  the 
preponderance  standard  of  evidence,  scientific  studies  of  any 
kind  on  ancestral  skeletal  remains  are  prohibited.   Furthermore, 
scientific  study  or  any  other  form  of  recording  or  preserving 
scientific  information  from  human  skeletal  remains  during  the 
NAGPRA  inventory  process  should  only  be  allowed  when  existing 
documentation  fails  to  satisfy  any  of  the  applicable  NAGPRA 
standards  of  identification. 

Acquisition  of  scientific  information  from  possible  Native 
Hawaiian  remains  should  only  be  allowed  where  a  thorough  review 
of  all  existing  information  possessed  by  a  museum  or  agency  fails 
to  establish  cultural  affiliation  by  a  reasonable  belief  and 
where  the  additional  evidence  provided  by  a  Native  Hawaiian 
organization  fails  to  satisfy  the  preponderance  standard. 


159 


The  scope  of  any  scientific  study  deemed  to  be  necessary  to 
establish  cultural  affiliation  and  initiated  during  the  inventory 
process  must  be  strictly  limited  to  the  determination  of  cultural 
affiliation  by  a  preponderance.   Since  the  preponderance  of 
evidence  is  not  a  high  standard,  only  minimal  scientific 
information  should  be  allowed  to  be  acquired.   Once  the 
information  acquired  establishes  cultural  affiliation  to  be  more 
likely  than  not,  the  inquiry  must  end. 

Recording  of  scientific  information  not  related  to,  or  in 
addition  to,  the  establishment  of  cultural  affiliation  should  be 
clearly  prohibited.   Necessary  scientific  study  must  be  viewed  as 
a  last  resort  in  the  NAGPRA  identification  process. 

Furthermore,  scientific  study  to  clarify  cultural 
affiliation  should  only  be  conducted  where  the  museum  or  federal 
agency  and  Tribe  or  Native  Hawaiian  Organization  agree  that  none 
of  the  NAGPRA  identification  standards  have  been  satisfied  based 
on  available  documentation  evidence,  or  after  the  matter  is 
submitted  to  the  NAGPRA  Review  Committee  as  a  dispute,  the 
Committee  recommends  scientific  study,  and  the  parties  agree. 

Since  treatment  of  ancestral  remains  is  and  will  always  be  a 
fundamental  attribute  of  sovereignty  and  self-determination,  the 
aforementioned  concerns  should  be  framed  as  a  consensual  issue 
allowing  for  those  Tribes  or  Native  Hawaiian  organizations  who, 
once  cultural  affiliation  is  established,  wish  to  have  additional 
scientific  studies  conducted,  may  elect  to  do  so.   This  way, 
those  Tribes  and  Native  Hawaiian  organizations  who  object  to 


160 


further  scientific  study  will  have  their  wishes  respected  as  well 
the  wishes  of  those  who  request  additional  study. 

In  addition,  the  terms  "scientific  study"  and  "scientific 
information"  need  to  be  defined.   Scientific  study  should  be 
limited  only  to  the  observation  of  metric  and  non-metric  traits 
necessary  to  help  suggest  ethnicity  by  a  preponderance  of  the 
evidence.   Destructive  analysis  methods  such  as  mitochondrial  DNA 
analysis  and  radio  carbon  dating,  as  well  as  x-rays  should  be 
strictly  prohibited. 

Following  review  of  the  recently  promulgated  NAGPRA 
regulations,  Hui  Malama  believes  there  is  a  further  need  to 
clarify  the  inventory  process  to  avoid  unnecessary  scientific 
study. 

NAGPRA  defines  "inventory"  to  be  a  "simple  itemized  list" 
and  section  10.2(g) (2)  of  the  regulations  further  defines  the 
term  to  be  an  "item  by  item  description  of  human  remains  and 
associated  funerary  objects."   Section  10.9(c)(3)  provides  that 
information  required  in  the  inventory  of  human  remains  and 
associated  funerary  objects  include  "dimensions"  and  "if 
appropriate,  photographic  documentation." 

Hui  Malama  is  concerned  that  the  term  "dimensions"  may  be 
applied  to  human  remains  and  interpreted  to  include  measurements, 
a  form  of  scientific  study.   The  regulations  seem  to  require  a 
form  of  scientific  study  of  human  remains  during  the  inventory 
process,  despite  the  fact  that  cultural  affiliation  may  be 
otherwise  established  by  existing  documentation. 


161 


Finally,  for  the  reasons  stated  above,  this  Committee  should 
consider  deleting  NAGPRA  section  7(b)  relating  to  completion  of 
scientific  study  "the  outcome  of  which  is  a  major  benefit  to  the 
United  States." 

The  aforementioned  recommendations  will  help  clarify  the 
role  of  scientific  study  in  the  inventory  process  and  provide  for 
limited  studies  to  clarify  cultural  affiliation  only  when 
necessary. 

II.  Photography  of  Native  American  Human  Remains  Should  be 
Expressly  Prohibited  Unless  Consent  Provided 

In  addition,  Hui  Malama  is  concerned  as  to  whom  finally 
decides  whether  photographic  documentation  is  appropriate  and 
what  criteria  controls  such  a  determination.   Our  experience  has 
Bhown  that  museums  in  possession  of  ancestral  Native  Hawaiian 
remains  ultimately  decide  this  issue,  regardless  of  any 
objections  raised. 

Hui  Malama  views  photographs  as  another  offensive  form  of 
taking  /nana.   We  strongly  urge  the  Committee  to  amended  NAGPRA  to 
provide  a  clear  prohibition  on  the  photography  of  Native  American 
human  skeletal  remains  absent  establishment  of  cultural 
affiliation  and  only  upon  the  express  consent  of  the  culturally 
affiliated  Tribe  or  Native  Hawaiian  organization. 

III.  NAGPRA  Should  Be  Amended  to  Become  a  Withholding  Statute 
NAGPRA  inventories  contain  certain  sensitive  information 

including  burial  location  and  measurements  and  descriptions  of 
human  remains  where  scientific  studies  are  conducted  to  clarify 
cultural  affiliation.   Persons  interested  in  grave  robbing,  may 

7 


162 


UBe  the  locational  information  to  find  extant  burial  sites. 

Moreover,  ae  a  matter  of  personal  privacy,  persons  not  culturally 

affiliated  to  ancestral  remains  should  not  have  the  right  to 

access  information  derived  from  scientific  studies. 

Due  to  this  sensitivity  and  the  potential  for  harm,  Hui 

MSlama  believes  that  those  Tribes  and  Native  Hawaiian 

organizations  who  wish  should  have  the  right  to  prevent  public 

disclosure  of  certain  types  of  inventory  information.   Once 

cultural  affiliation  is  established,  the  culturally  affiliated 

Tribe  or  Native  Hawaiian  organization  should  have  final  say  over 

treatment  of  sensitive  inventory  information,  as  a  fundamental 

right  and  as  a  function  of  their  inherent  sovereignty. 

Therefore,  we  urge  the  Committee  to  consider  amending  NAGPRA 

to  explicitly  state  in  unambiguous  terms  that  burial  location 

information  and  any  information  derived  from  a  scientific  study 

conducted  during  an  inventory  to  clarify  cultural  affiliation 

shall  not  be  released  to  the  public,  but  instead  be  kept 

confidential.   Such  an  amendment  will  help  qualify  NAGPRA  as  a 

withholding  statute  for  FOIA  purposes . 

IV.   Congress  Needs  to  Appropriate  Adequate  Funding  to  Implement 
NAGPRA 

Congress  has  appropriate  only  $  4.37  million  for  grants  to 
museums,  federal  agencies,  Tribes  and  Native  Hawaiian 
Organizations  to  implement  NAGPRA.   One  important  aspect  of  the 
NAGPRA  process  that  is  adversely  affected  by  the  lack  of  adequate 
funding  is  consultation. 

In  order  for  consultation  between  federal  agencies,  museums 

8 


163 


and  Tribes  and  Native  Hawaiian  Organizations  to  be  meaningful, 
for  accurate  information  to  be  communicated  back  and  forth,  face 
to  face  meetings  and  inspections  of  cultural  items  are 
imperative.   Congress  needs  to  stand  by  the  intent  of  NAGPRA  and 
providing  more  meaningful  funding  by  doubling  appropriations  for 
the  next  three  years.  Only  then  will  the  difficulties 
surrounding  repatriation  be  sufficiently  addressed  and  justice 
extended  to  those  ancestors  adversely  affected  by  the  past 
through  removal  from  sacred  burial  sites. 


164 


V.    NAGPRA  should  Provide  the  Remains  and  Guardians  with  Standing 

The  district  court  concluded  that  the  ancestral  Hawaiian 

remains  which  Hui  Malama  sought  to  protect  from  further  desecration 

did  not  have  standing  to  sue  in  their  own  capacity  because:  1) 

Nagpra  did  not  expressly  confer  standing  on  the  remains,  and  2)  th« 

remains  did  not  suffer  an  "injury- in- fact"  recognized  at  law.   Ab 

the  district  court  wrongly  noted, 

Objects  or  entities  without  any  attributes  of  life  in  the 
observable  or  provable  sense  are  generally  not  afforded 
a  legally-protected  interest  for  standing  purposes. 

Na  Iwi  v.  pa;ton,  894  F.  Supp.  1397,  1407  (D.  Haw.  1995).   As 

testified  extensively  by  Hui  Malama 's  witnesses,  our  ancestral 

remains  are  considered  "persons"  that  deserve  our  utmost  care  and 

respect.   The  district  court  clearly  showed  its  discrimination  in 

favor  of  legally-recognized  western  "injuries"  when  it  remarked 

that  inanimate  object,  such  as  ships  and  corporations,  had  standing 

to  sue  in  their  own  behalf  because  they  ■  are  legal  fiction* 

created  for  the  benefit  of  our  society.  ..  [and  would]  facilitate] 

business  and  commerce,  which  in  turn  furthers  societal  interests 

and  benefits  individual  persons."   Na  iwi .  894  F.  Supp.  at  1407. 

Protecting  our  KUPUna ,  under  Hawaiian  tradition  and  custom,  serves 

an  equally  useful  purpose  that  benefits  our  society!   According  to 

tradition  and  custom,  our  ancestors  have  been  injured  by  disrupting 

their  journey  to  the  afterlife.   Failure  to  protect  our  ancestor. 

on  their  peaceful  journey  to  the  afterlife  will  mean  repercussions 

for  the  living,  including  members  of  Hui  Malama.  Accordingly,  this 

Congress  can  correct  this  omission  by  amending  NAGPRA  to  reflect 

the  importance  of  ancestral  remains  to  living  native  Americans  by 


165 


allowing  the  remains  to  sue  on  their  own  behalf. 

Moreover,  the  district  court  concluded  that  Hui  Malama  does 
not  have  standing  to  sue  as  guardians  on  behalf  of  the  ancestral 
native  Hawaiian  remains  because:  1)  NAGPRA  does  not  confer 
guardian  status  on  Hui  Malama,  and  2)  tradition  and  custom  under 
Hawaiian  law  did  not  dictate  that  Hui  Malama  become  the  sole 
guardian  of  the  remains.  The  district  court  erred  in  its  analysis. 
Tradition  and  custom  dictated  that  a  Hawaiian  individual  or 
organization  protect  their  ancestors  from  being  robbed  of  their 
spiritual  mana,  or  power  during  the  inventory  process.  Hui  Malama 
was  not  seeking  status  as  a  legal  guardian,  but  simply  as  a 
"spiritual"  guardian  or  advocate  on  behalf  of  the  remains.  The 
Federal  defendants  could  not  disprove,  nor  were  there  any  Hawaiian 
individual  organizations  who  came  forward  to  object  to,  Hui 
Malama' s  claim  to  advocate  as  "guardian"  on  their  behalf. 
Recognizing  the  importance  of  Native  American  and  Hawaiian  beliefs 
that  remains  are  simply  not  "cultural  items",  but  rather  as  living 
persons  capable  of  suffering  injury  to  their  dignity,  reputation, 
etc.  Accordingly,  NAGPRA  should  be  amended  to  allow  native  American 
tribes  and  native  Hawaiian  organizations  the  right  to  represent 
their  ancestors  in  court. 


166 


Supplemental  Testimony  Submitted  to 

Senate  Conmittee  on  Indian  Affairs 

Concerning  Oversight  Hearing  en 

Implementaticn  of  P.L.  101-601,  December  6,  1995 

Native  American  Graves  Protection  and  Repatriation  Act" 


by 


Robert  M.  Peregoy 

Senior  Staff  Attorney 

Native  American  Rights  Ftmd 

1712  N  Street  N.W. 

Washington,   D.C.     20036 

Phone   (202)   785-4166 

Fax   (202)    822-0068 


167 


SUPPLEMENTAL  TESTIMONY 

SUBMITTED  TO  THE 

SENATE  COMMITTEE  ON  INDIAN  AFFAIRS 

OVERSIGHT  HEARING,  DECEMBER  6,  1995 

NATIVE  AMERICAN  GRAVES  PROTECTION  AND  REPATRIATION  ACT 

The  Native  American  Rights  Fund  (NARF)  is  a  public  interest,  nonprofit  law 
firm  dedicated  to  serving  the  legal  needs  of  Indian  tribes  and  Native  Americans . 
As  a  nationally-oriented  law  firm,  NARF  has  represented  several  Indian  tribes  and 
one  tribal  official  in  state  and  federal  repatriation  matters  over  the  course  of 
the  last  decade.  NARF  submits  the  following  supplemental  testimony  in 
conjunction  with  two  clients,  the  Pawnee  Tribe  of  Oklahoma  and  Judi  Morgan, 
former  repatriation  officer  of  the  Ponca  Tribe  of  Nebraska.  This  supplemental 
testimony  is  submitted  in  response  to  the  reguest  of  the  Honorable  John  McCain, 
chairman  of  the  Senate  Indian  Affairs  Committee. 

Scope  of  Final  NAGPPA  Regulations 

We  endorse  and  adopt  the  distinguished  testimony  of  the  American  Indian 
Ritual  Object  Repatriation  Foundation  (ATRORF)  regarding  the  development  and 
scope  of  the  final  regulations  implementing  NAGPRA. 

NAGPRA  Inventory  Process  and  Further  Scientific  Studies 

Congress  needs  to  amend  NAGPRA  to  unequivocally  and  expressly  prohibit  any 
further  scientific  studies  of  human  remains  and  associated  funerary  objects,  at 
a  minimum  where  cultural  affiliation  is  known  or  can  be  determined  based  upon  a 
preponderance  of  existing  information.  In  most  cases,  museums  have  retained  the 
dead  bodies  and  funerary  objects  of  Native  ancestors  for  decades.  They  therefore 
have  had  ample  time  to  conduct  whatever  studies  they  felt  were  necessary. 

However,  it  still  seems  to  escape  certain  museums  and  social  scientists 
that  their  "scientific  specimens"  are  the  remains  of  human  beings,  some  who  were 
buried  during  the  late  nineteenth  century — the  recent  past  considering  that  such 


168 


are  the  remains  of  grandparents  of  some  Native  people  living  today.  To  many 
Indian  tribes  and  Native  peoples,  the  dead  are  sacred.  Any  disturbance  of  the 
dead  (or  their  funerary  objects)  is  a  sacrilege.  This  includes  "further 
scientific  studies."  Such  sacrilegious  mistreatment  is  deeply  offensive  and 
inflicts  real  pain  on  Native  peoples,  communities  and  tribes.  Congress  has  a 
responsibility  to  see  that  this  does  not  happen. 

Moreover,  "further  scientific  studies"  where  cultural  affiliation  is  known 
has  caused  needless,  acrimonious  controversy  between  Indian  tribes  and  museums, 
which  can  culminate  in  unnecessary,  costly  legal  expenses  and  litigation.  A 
prime  example  is  the  current  conflict  involving  the  Ponca  Tribe  of  Nebraska,  the 
Ponca  Tribe  of  Oklahoma  and  the  University  of  Nebraska. 

Briefly  stated,  the  University  of  Nebraska,  under  the  auspices  of  Professor 
Karl  Reinhard,  conducted  destructive  analyses  on  Ponca  remains — when  there  was 
never  any  guestion  about  cultural  affiliation.  The  Ponca  Tribes  protested  this 
outrageous  conduct.  The  Ponca  Tribe  of  Oklahoma  threatened  to  sue  the  University 
for  performing  the  unauthorized  destructive  analyses.  See  Exhibits  1  and  2. 

Although  the  University  of  Nebraska  ultimately  placed  a  moratorium  on 
destructive  testing,  the  damage  to  the  remains  and  the  living  Ponca  descendants 
and  tribes  had  been  done.  Judi  Morgan,  the  repatriation  director  of  the  Ponca 
Tribe  of  Nebraska,  described  her  opinion  of  Reinhard's  work  as  "insensitive," 
"distasteful,"  "dehumanizing"  and  "disrespectful."  She  further  suggested  that 
Reinhard's  destructive  analyses  may  constitute  possible  violations  of  NAGPRA. 
Reinhard's  attorney  wrote  an  intimidating  letter  threatening  to  sue  Morgan  for 
libel  and  slander,  for  merely  voicing  her  opinion  about  Reinhard's  mistreatment 
of  the  remains  of  her  ancestors.  See  Exhibit  3.  In  turn,  Morgan  was  forced  to 
enlist  the  assistance  of  the  Native  American  Rights  Fund  to  defend  against 


169 


Reinhard's  ultimately  hollow,  yet  intimidating  threat  of  suit.  See  Exhibit  4. 
Reinhard  quickly  backed  off,  but  the  situation  between  the  tribes  and  the 
University  appears  to  remain  unresolved  at  this  time. 

This  is  merely  one  example  of  controversies  triggered  by  "further 
scientific  studies"  when  cultural  affiliation  of  human  remains  is  known. 
Congress  can  and  should  prevent  these  unfortunate,  costly  and  ultimately 
unnecessary  conflicts  by  amending  NAGPRA  to  expressly  prohibit  further  studies 
of  human  remains  and  funerary  objects  when  cultural  affiliation  is  known,  absent 
express  written  consent  of  the  governing  bodies  of  affected  tribes,  individuals 
or  entities. 

NARF,  the  Pawnee  Tribe  of  Oklahoma  and  Judi  Morgan  are  deeply  appreciative 
of  the  Committee's  continuing  concern  and  interest  to  assure  that  NAGPRA  is 
properly  and  fully  implemented. 


170 


Hi 


SH 


2"3"H     2A 
Iff     So 

or  2 

s  _ 

■=•§.21 

ob  =■«  «■•■£ 

i5*lin 


oJ5 

-.2  c 


:  JS  ™  O. 


■2  ~3  — ; 


T23  o 


sec 

5 'II 


c     — 
I^°    "I 


51    £   C    U    ^ 

€-g§£>£ 

»  oei-—  to 

O   c 
U    c 


?T3 


CO—   c 

^3>g 

-o  A  £•  — 

IBPl 


C      'fc  «   E   n  >   " 

b  .«  S  5  2     g  g 
o|a£slj|s 


]    5         to   t«  ;2 

2        _   0  to 

:  —        *  i-  — 


2  H 
O  - 

hi" 
E  "c  .""■  w  ■£ 

(P    C  T3    »-  t—  . 


8J2>u- 


■a  g 


2  >>'e  T3  cr  c 


11  2  ■ 

.  to  c.  "O  - 
o  c  £  oo 
«  "  o.S. 
Jj-o  u  o 
u  2  2:  3 

3-5    O  " 


a^s ^  - 

"fl:-*JiJ* 


"if '5b"3  .c  :2 

PC  -«. 


.2  o  S  « 


.S£.§     .„ 

2  °o-  £ 

2  ■*  n  o  )3 

C   ■-    to  tr>"-r 


-g  .    SEE. 

•r    -    <a  o  o 
2  .   -o°E 


-  1? : 


So 


coc   j'SO'gc 


E 


3 

if J   -a  « 

I 


S.E  E 

"IB 


z 


t)    y    u    — —    3JJ  <*.    c 
^    =  —    O  — :    c  —  ■-. 


^ 


u  S  o  &z 
-°  eoo"-:  « 

E   C   =  •  K  |2 


1  i'l 

<o  "^  S  °  "> 


£     -Sfe:  ^  3'5"S     £■ 
m    -a  S    <•     "5-5 .2    "ll! 

-  ".«'      E  «  =    -.J-^-H  V  °, 

»    v-sr  B  ffl'S  S«  ~-= 


■e-P1 


^Ilvl^«s<°  -lis 

—  „  =  "«■"—•  *&Z  c  -5  > 

3„--tO>C50t;3~3td      . 

U^      E  E^  SS.S  -£.S      &-os  S 


:     •=  2  «5   •  2    • « 

>  w5  p1  jo  to  *_  q       75 

•I8.§ 


o  ~    O    E    g—    ""gt 


72  S 

i  °  c3  E-°t>E  « 
>  c  5  o  o  C.J.  o  o 


■SO 
cZ" 


El 


ESSE 


oO- 

>V.S 

C   2: 

o  E 


5 

H 

in 

ffi 

5; 

< 

X 

_i 

X 

m 

UJ 

d 


171 


EXHIBIT 


Poncas 
protest 
destructive 
bone  tests 

BY  JOE  DUGGAN 


Potentially  unlawful  studies  of 
American  Indian  skeletal  remains 
have  left  members  of  the  Ponca 
Tribe  of  Nebraska  feeling  victinV 


ago  the  Ponca 
Tribe  rebuned 
bones  and  arti- 
facts that  had 
been  uncovered 
bv  archaeolog- 
ists in  1937  In  the 
process  of  ob- 
taining the  re- 
mains from  the 
University  of  Ne- 
braska-Lincoln, 
members  of  the 
tribe  learned  that  destructive  tests 
had  been  done  on  some  of  the  re- 
mains without  the  tribes  written 
permission. 

"Were  tired  of  being  looked  at.* 
said  Jucu  Morgan  of  Lincoln,  a  mem- 
ber of  the  Ponca  Tribe  "This  kind  of 
testing  dehumanizes  us  It's  disres- 
pectful" 

Anthropology  Professor  Karl  Re- 


10A 


FROM  I 


Poncas/Tests  mix  acid  with  bones  to  get  information 


cems  about  potential  litigation  re- 
sulting from  destructive  analyses. 

The  memo  asked  questions  cased 
on  a  university  lawyer's  interpreta- 
tion of  the  federal  Native  American 
Graves  Protection  and  Repatriation 
Act.  which  passed  in  late  1990 

The  lawyer's  opinion  slated  that 
"everything  that  had  been  done  aft- 
er 1991  was  clearly  illegal.*  accord- 
ing to  Reinhard  No  one  asked  for  a 
legal  opinion  about  the  testing  until 
More  on  PONCAS.  Page  10A 


Continued  from  Page  1 A 

four  years  after  the  federal  law  was 

-What  appalled  the  hell  out  of  me 
-was-all  through  this  period  I  had 
Ibeeri  assured  that  we  were  working 
■within  the  limits  of  NAGPRA.*  Re- 
inhard said.  "Profound  ignorance  by 
Ithe  administration  of  the  essential 
law  put  me  in  jeopardy.  I  was  abso- 
lutely floored.* 

■  *-. University  General  Counsel  John 
^Wiltse  said  the  opinion  was  confi- 
;dential  and  he  refused  to  discuss  it 
Helconiirmed,  however,  that  he  had 
not"  been  consulted  about  destmc- 
llive'testing  of  remains  until  earlier 
thisyea: 

The  university  started  a  mora- 
torium on  destructive  testing  in  the 
summer  of  1993.  Wiltse  said,  to  his 
knowledge,  no  destructive  tests 
hive  been  conducted  since  then. 
That  leaves  a  2!i-year  gap  during 
which  destructive  analyses  were 
•done. 

I  The  tests  involve  mixing  acid 
with  a  small  amount  of  bone  in  order 
to-  obtain  collagen.  The  collagen  is 
put  in  an  isotope  ratio  mass  spec- 
trometer, which  separates  stable 
forms  of  carbon  and  nitrogen.  From 
this -information,  scientists  can  learn 
details  about  disease  and  dietary 
habits  of  the  individual. 

Reinhard  successfully  used  infor- 
mation obtained  by  tests  done  on 
Omaha  Indian  remains  in  1989  Oma- 
ha tribal  leaders  gave  their  bles- 
-  sings  to  the  research. 

Reinhard's  findings  provided  cul- 
tural information  about  the  tribes 
ancestors  In  addition,  dietary  data 
helped  establish  a  link  between  high- 
fatdlets  and  the  high  incidence  of  di- 
abetes among  tribal  members  Both 
the  Omahas  and  VSL  administra- 
tors praised  the  cooperative  effort, 
saying  it  proved  that  scientific  study 
of  ancient  bone  could  benefit  both 
science  and  descendants. 
•  Reinhard's  pilot  study  included 
destructive  tests  of  Ponca  remains. 
The  Ponca  Tribe  of  Nebraska  — 
which  dissolved  in  1962  —  was  re- 
Stored  in  late  1990.  Reinhard  said  he 
ordered  the  tests  before  the  tribe's 
restoration  in  1990  and  before  the 
passage  of  the  federal  repatriation 
law. 

The  law  —  passed  in  late  1990  — 
required  museums  and  universities 
to  compile  inventories  of  American 
Indian  burial  remains  by  Nov  15  of 
this  year  so  the  remains  could  be  re- 
turned to  the  tnbes.  University  offi- 
cials said  the  destructive  tests  were 
used  to  determine  whether  the 
bones  were  related  to  the  Poncas  or 
one  of  the  other  tr:bes  that  also  lived 
in  northeast  Nebraska,  and.  there- 
fore, they  complied  with  NAGPRA. 

The  law  stipulated,  however,  that 
researchers  could  not  use  the  inven- 


versity  administrators:  William 
Splinter,  the  former  vice  chancellor 
for  research,  and  Hugh  Genoways. 
the  former  director  of  the  Universi- 
ty of  Nebraska  State  Museum  What 
was  said  at  the  meeting  is  crucial  to 
explaining  whether  the  university 
acted  within  the  requirements  of  the 
law  in  conducting  the  tests. 

Discussions  at  the  meeting  cen- 
tered on  Reinhard's  work  with  the 
Omahas.  At  some  point,  the  adminis- 
trators asked  LeRoy  if  the  Poncas 
would  be  interested  in  having  simi- 
lar analyses  of  remains  on  their  an- 
cestors. 

LeRoy.  who  at  the  time  was  di- 
rector of  the  tribe's  restoration  com- 
mittee, adamantly  denied  that  he 
granted  permission  for  the  testing 
_To  have  given  permission  would 
have  required  a  written  agreement 
from  the  Ponca  interim  tribal  coun- 
cil." he  said. 

Genoways  said  he  remembered 
that  LeRoy  not  only  gave  officials 
permission  to  carry  out  the  testing. 
but  he  demanded  that  "the  universi- 
ty do  the  same  for  the  Poncas  that 
they  did  for  the  Omahas." 

Splinter  said  that  LeRoy  was  non- 
committal. 

'I  do  not  recall  Fred  giving  us 
any  specific  approval.  I  don't  think 
that  at  the  time  Fred  was  giving  us 
any  approval  or  disapproval." 
Splinter  said. 

Determinations  about  the  legiti- 
macy of  testing  hinge  on  whether 
LeRov  granted  oral  permission,  said 
Wiltse.  the  UNL  lawyer. 

"If  it  was  done  with  the  consent 
of  the  tribe,  no.  I  don't  think  it  was  a 
violation'  of  federal  law,  he  stated. 

Despite  an  ambiguous  response 
from  one  member  of  the  tnbe.  de- 
structive tests  were  authorized  after 
the  meeting,  according  to  Re- 
inhard's records.  Larry  Tieszen.  a 
professor  of  biology  at  Augustana 
College,  confirmed  that  his  laborato- 
ry conducted  such  tests  for  UNL. 

"I  believe  there  were  Ponca  and 
Omaha  (remains)  that  were 
involved,"  Tieszen  said. 

In  1992.  Reinhard  applied  for  a 
S2S8.000  grant  from  the  National  En- 
dowment for  the  Humanities  He 
wanted  to  money  to  analyze  Omaha 
and  Ponca  skeletal  data  to  deter- 
mine the  impact  of  Europeans  on 
the  culture  and  health  of  the  tnbes. 

Reinhard  described  the  grant  in  a 
letter  sent  a  letter  to  the  Ponca 
Tnbe  in  Apnl  1993.  In  that  letter,  he 
clearly  pushed  for  an  analysis  of 
Ponca  remains  that  "will  follow  the 
pattern  of  the  Omaha  analysis." 

Within  six  weeks  of  Reinhard's 
letter,  a  lawyer  for  the  tnbe  notified 
the  professor  that  the  Ponca  tnbal 
council  never  authorized  the  study 
detailed  in  Reinhard's  grant  request 


about  $100,000.  He  now  says  that  the 
grant  study  did  not  require  destruc- 
tive testing  Because  of  a  lack  of 
funds,  staff  used  the  grant  to  shore 
up  results  of  the  Omaha  study  and 
the  Ponca  components  essentially 
were  dropped. 

Splinter  and  Genoways  both  reit- 
erated that  any  testing  was  done  to 
prove  cultural  affiliation.  Reinhard 
said  he  told  the  men  that  destructive 
analysts  could  prove  cultural  affilia- 
tion, but  it  was  Splinter  and  Geno- 
ways who  authorized  the  testing 

"Every  memo  I  had  —  including 
from  Bill  Splinter  —  plotted  the 
work  I  was  doing,*  Reinhard  said 

Splinter  passed  the  buck  back  to 
the  professor,  saying  that  the  admi- 
nistration was  not  in  the  habit  of  di- 
recting research  by  the  faculty. 

At  the  least,  the  tests  represented 
unethical  treatment  of  materials 
considered  sacred  by  the  tnbe. 
according  to  Jack  Trope,  a  New  Jer- 
sey lawyer  who  helped  draft  NAG- 
PRA. He  also  questioned  the 
university  s  justification  that  testing 
was  done  to  prove  tribal  affiliation. 

"Dearly  that's  not  the  intent  of 
Congress."  he  said.  "It  absolutely 
says  that's  not  what  this  act  is  about 
Cultural  affiliation  has  to  be  deter 
mined  based  on  existing  evidence." 

In  the  end.  the  Poncas  got  what 
they  wanted:  the  remains.  Despite 
the  controversy  over  testing,  univer- 
sity officials  returned  the  remains  in 
a  timely  fashion  and  members  of  the 
tribe  were  happy  to  complete  the  re- 

Perhaps  as  many  as  1.000  individ- 
uals encompassing  750  bunals  are 
contained  in  the  state  museum's  col- 
lection. The  issue  of  repatnauon  will 
not  go  away  any  time  soon,  said 
Morgan,  who.  in  addition  to  being  a 
Ponca.  is  also  director  of  the  Ne- 
braska Commission  on  Indian  Af- 
fairs. 

Morgan  said  she  has  heard  the 
arguments  about  how  the  testing 
used  only  a  small  amount  of  bone 
and  that  they  were  done  simply  for 
tnbal  identification.  She  turned  the 
argument  on  the  white  culture  that 
predominantly  conducted  the  test- 
ing. 

Historically,  anthropology  has 
treated  white  remains  differently 
than  Indian  remains.  While  pioneer 
skeletons  quickly  were  returned  to 
the  earth.  American  Indian  skele- 
tons were  placed  on  a  museum  shelf. 
That's  discrimination,  plain  and  sun- 
pie  Morgan  said. 

•Why  should  Indian  remains  be 
treated  any  differently?"  she  asked 
"You  should  have  a  right  to  know 
that  when  your  grandmother  is  bur- 
ied, she  will  be  left  alone,  not  dug  up 
in  200  years  and  have  her  bones  de- 
stroyed to  be  put  through  isotopic 
tests.* 


172 

:  rece;  2  2  e 


LAW  OFFICES 

BAILEY,  POLSKY.  COPE  8c  KNAPP 

SUITE  400.  COOPER  PLAZA  BUILDING 
2  I  I   NORTH    I  2TM  STREET 


ROLLINR.  BAILEY.  PC. 

LINCOLN.  NEBRASKA  69508 


AX  A  OENNEYI 


THOM  K.  COPE  TELEPHONE  402  476  8877 

PATRICIA   A.   KNAPP  FAX   402  476-0543 

ANTHONY  C.  COE 

November  21,  19  95 

CERTIFIED  -  RETURN  RECEIPT 

Ms.  Judy  Morgan  EXHIBIT 

Nebraska  Indian  Commission 

State  Capitol  Bldg. 

Lincoln,  NE .   68509  O 


RE:   Dr.  Karl  Reinhard  v.  Judy  Morgan 

Dear  Ms.  Morgan: 

We  represent  Dr.  Karl  Reinhard  in  possible  litigation 
against  you.   This  letter  is  written  to  you  pursuant  to  Neb.  Rev. 
Stat.  §  25-840.01.   You  have  made  slanderous  and  libelous 
statements  about  Dr.  Reinhard.   Specifically,  you  have  told 
tribal  leaders  that  Dr.  Reinhard 's  work  was  illegal.   You  have 
attempted  to  have  tribes  sue  Dr.  Reinhard.   You  have  made 
statements  in  speeches  denigrating  Dr.  Reinhard.   We  have 
specific  evidence  that  you  made  statements  disparaging  Dr. 
Reinhard  at  various  conferences.   At  those  conferences  you 
discussed  Dr.  Reinhard 's  work  in  an  uncomplimentary  fashion,  and 
in  fact,  made  statements  that  his  interview  in  the  film  "Bones  of 
Contention"  were  duplicitous.   Dr.  John  Dendy  has  expressed  grave 
concern  about  your  actions. 

Moreover,  your  activities  have  made  it  virtually  impossible 
for  Dr.  Reinhard  to  work  with  Native  American  Tribes  in  North 
America  and  he  may  need  to  take  his  funding  to  South  America. 
Under  Neb.  Rev.  Stat.  §  25-840.01,  you  have  21  days  in  which  to 
set  the  record  straight.   We  expect  letters  to  be  sent  to  John 
Dendy  (713  S.  Buckeye,  Abilene,  KS . ,  67410),  Steven  Holen,  Tom 
Meyer,  Fred  LeRoy,  Joe  Dugan,  from  the  Journal-Star,  and  other 
Tribal  leaders . 

Your  activities  will  result  in  a  lawsuit  against  you  unless 
you  immediately  cease  and  desist  your  disparaging  remarks  and  if 
you  fail  to  retract  the  mis-information  you  have  been 
disseminating.   If  we  don't  have  copies  of  your  letters  within  21 
days,  I  have  been  authorized  to  protect  Dr.  Reinhard's  legal 
rights. 

Very  truly  yours, 

'thom  k.  cope      (    ~'y 

TKCTjlc 

cc      Karl   Reinhard 


173 


Native  American  Rights  Fund 


^1°'.-^"'0C'<:O'  I7I2NSHM.  N.W.  •  Washington.  DC.  20036-2976  •  1202)785-1166  •  Fax  (202)  822-0068 

Ro'-wn  M   Ptfegoy  (DC.  CO) 
•«dmilted  in  Califofn.j  only 


EXHIBIT 


BY  CERTIFIED  MAIL  #  P004646036 
RETURN  RECEIPT  REQUESTED 


December  12,  1995 


Thorn  K.  Cope,  Esq. 
211  North  12th  Street 
Suite  400,  Cooper  Plaza  Bldg. 
Lincoln,  NE   68508 

Re:   Your  November  21,    1995  Letter    to  Ms.    Judi   Morgan 

Dear  Mr.  Cope: 

We  represent  Judi  Morgan  in  "possible  litigation"  which  Dr. 
Karl  Reinhard  has  threatened  pursuant  to  your  letter  to  Ms.  Morgan 
dated  November  21,  1995  (copy  enclosed) .  Therein,  you  demand  that 
Ms.  Morgan  "set  the  record  straight"  with  regard  to  unspecified 
"slanderous  and  libelous  statements  about  Dr.  Reinhard"  which  he 
alleges  she  made.  You  threaten  to  sue  her  on  behalf  of  Dr. 
Reinhard  unless  she  "immediately  ceases  and  desists"  making 
alleged,  unidentified  "disparaging  remarks,"  and  if  she  fails  to 
retract  alleged,  unexplained  "mis-information." 

As  set  forth  below,  there  is  no  truth  or  substance  to  the 
inexplicit  allegations  alluded  to  in  your  letter.  Your  client 
therefore  has  no  cause  of  action  against  Ms.  Morgan.  Even  if  he 
did,  she  is  immune  from  suit. 

You  rely  on  Neb.  Rev.  Stat  §25-840.01  in  what  amounts  to 
nothing  more  than  a  transparent  attempt  to  threaten,  intimidate  and 
coerce  Ms.  Morgan  into  renouncing  her  First  Amendment  right  to  free 
speech  This  statute  requires  a  plaintiff  in  an  action  for  damages 
for  the  publication  of  libel  or  invasion  of  privacy  to  request  a 
correction  in  order  to  recover  more  than  special  damages.  The 
statute  requires  the  plaintiff  to  give  each  defendant  a  certified 
or  registered  notice  "specifying  the  statements  claimed  to  be 
libelous.  .  .and  specifically  requesting  correction."  (Emphasis 
supplied)  .  Publication  of  a  correction  is  required  to  be  made 
within  three  weeks  after  receipt  "in  substantially  as  conspicuous 
a  manner  as  the  original  publication  about  which  the  complaint  was 
made . " 


174 


Thorn  K.  Cope,  Esq. 
December  12,  1995 
Page  2 

Your  November  21,  1995  letter  fails  in  all  respects  to  specify 
the  alleged  libelous  statements  which  your  client  attempts  to 
impute  to  Ms.  Morgan.  It  does  not  identify  any  particular 
"publication,"  nor  does  it  refer  to  any  specific  content,  date, 
place  or  surrounding  circumstances.  It  therefore  falls  far  short 
of  the  notice  requirements  of  Neb.  Rev.  Stat.  §25-840.01,  and  does 
not  constitute  "notice"  thereunder. 

Moreover,  your  letter  baldly  demands  that  Ms.  Morgan  "retract 
the  misinformation  [she  has]  been  disseminating,"  as  alleged.  This 
vague  demand  further  fails  to  meet  the  statutory  requirement  to 
"specifically  request  correction."  It  therefore  does  not 
constitute  a  request  for  correction  under  Neb.  Rev.  Stat.  §25- 
840.01. 

In  short,  the  November  21  letter  fails  in  all  respects  to 
comply  with  the  Nebraska  statute  upon  which  you  rely  to  threaten 
suit  against  Ms.  Morgan.  As  a  result,  our  client  is  left  in  the 
dark  as  to  what  specific  actionable  statements  she  allegedly  made. 
Likewise,  she  is  at  a  loss  to  understand  what  specific 
"corrections"  Dr.  Reinhard  wants  or  expects  her  to  make. 

Any  comments  Ms.  Morgan  may  have  made  which  may  have  upset  Dr. 
Reinhard  are  not  false  statements  of  fact;  they  are  simply  and 
solely  her  subjective  opinion  of  Reinhard' s  and  the  University's 
mistreatment  of  her  ancestors'  remains.  Subjective  opinions  are 
not  libelous  per  se .  They  constitute  free  speech  and  are  plainly 
protected  by  the  First  Amendment.  See  Turner  v.  Welliver,  et  al .  , 
226  Neb.  275,  291-93  (1987);  K  Corporation  v.  Stewart,  247  Neb. 
290,  295  (1995)  .  See  also,  Beverly  Hills  Foodland,  Inc.  v.  United 
Food  and  Commercial  Workers  Union,  Local  655,  39  F.3d  191,  (196) 
(8th  Cir.  1994)  (statement  of  opinion  actionable  only  if  it 
reasonably  implies  false  and  defamatory  facts  and  "only  defamatory 
facts  that  are  capable  of  being  proved  false  are  subject  to 
liability  under  state  libel  law;"  terms,  such  as  "unfair,"  which 
require  a  subjective  determination  are  incapable  of  factual  proof, 
and  are  therefore  not  actionable) ;  Wheeler  v.  Nebraska  State  Bar 
Association,  244  Neb.  786,  789  (1993)  (threshold  question  in 
defamation  suits  is  whether  a  reasonable  fact  finder  could  conclude 
that  the  published  statements  imply  a  provably  false  assertion  of 
fact) . 

Even  if  Ms.  Morgan's  statements  would  not  qualify  as 
nonactionable  pure  opinion,  the  truth  of  her  statements  would  serve 
as  a  defense  to  any  libel  claim,  should  your  client  somehow  succeed 
in  bringing  and  maintaining  a  suit  against  her.  However,  he  cannot 
do  so. 

You  may  be  interested  to  know  that  officials  of  Indian  tribes 
enjoy  common  law  immunity  from  suit  when  acting  in  their  official 


175 


Thorn  K.  Cope,  Esq. 
December  12,  1995 
Page  3 

or  representative  capacity  and  within  the  scope  of  their  valid 
authority.  Id.  See  Burlington  Northern  R.R.  Co.  v.  Blackfeet  Tribe 
of  Indians,  924  F.2d  899,  902  (9th  Cir.  1991),  cert,  denied  505 
U.S.  1212  (1992)  .  Ms.  Morgan  served  as  the  NAGPRA  Specialist 
(Native  American  Graves  Protection  and  Repatriation  Act)  for  the 
Ponca  Tribe  of  Nebraska  at  all  relevant  times.  During  this  period, 
as  part  of  her  official  duties  and  responsibilities,  she  was 
unequivocally  vested  with  authority  to  speak  about  the  treatment  of 
the  remains  of  Ponca  ancestors.  Therefore,  she  is  immune  from  suit 
under  the  doctrine  of  tribal  sovereign  immunity  in  the  first 
instance . 

By  all  accounts,  particularly  the  Lincoln  Journal  Star  article 
entitled  "Poncas  protest  destructive  bone  tests,"  published  two 
days  before  your  November  21  letter  to  Ms.  Morgan,  it  appears  that 
Dr.  Reinhard  is  running  scared,  and  has  sought  to  shift  the  focus 
from  possible  unlawful  conduct  on  his  part  (as  well  as  on  the  part 
of  the  University)  to  Ms.  Morgan's  constitutionally-protected 
speech.  However,  threatening  to  bring  a  groundless  lawsuit  against 
a  former  tribal  official  does  nothing  to  resolve  what  apparently 
has  become  another  acrimonious  relationship  involving  a  state 
agency  and  indigenous  Nebraska  Indian  tribes  and  their  officials. 
This  is  particularly  so  where  at  least  one  of  the  tribes  has 
indicated  it  is  considering  suit  against  the  University. 

If  anything,  your  client's  November  21  bogus  demand  only 
serves  to  exacerbate  a  tense  situation.  As  counsel  for  the  Pawnee 
Tribe  of  Oklahoma  against  the  Nebraska  State  Historical  Society  in 
past  repatriation  matters,  including  litigation,  I  can  assure  you 
that  spurious  tactics  such  as  those  employed  in  your  November  21 
letter  can  backfire  and  cause  sensitive  matters  such  as  this  to 
explode,  to  the  detriment  of  all  concerned. 

In  closing,  we  expect  you,  on  Dr.  Reinhard' s  behalf,  to  send 
a  letter  to  Ms.  Morgan  retracting  the  unfounded  and  false 
allegations  that  Ms.  Morgan  "made  slanderous  and  libelous 
statements  about  Dr.  Reinhard,"  as  published  in  your  November  21, 
1995  letter  We  expect  copies  of  this  retraction  to  be  sent  to 
John  Dendy  (713  S.  Buckeye,  Abilene  KS  67410),  Steven  Holen,  Tom 
Meyer  Joe  Dugan  of  the  Lincoln  Journal-Star,  and  Fred  LeRoy, 
chairman  of  the  Ponca  Tribe  of  Nebraska  (Lincoln  Field  Office  3341 
Pioneers  Blvd.  Ste .  5,  Lincoln,  NE  68506).  This  demand  for 
correction  and  retraction  is  sent  pursuant  to  Neb.  Rev.  Stat.  §  25- 
840.01,  as  set  forth  above. 

If  we  don't  receive  a  copy  of  such  letter  within  21  days,  Ms. 
Morgan  will  reluctantly  consider  initiating  further  action 
concerning  Dr.  Reinhard,  which  could  ultimately  implicate  the 
University  of  Nebraska.  At  a  minimum,  this  includes  advising  the 
Ponca  Tribes  of  Nebraska  and  Oklahoma  of  his  unredressed,  hollow 


176 


Thorn  K.  Cope,  Esq. 
December  12,  1995 
Page  4 

threat  of  suit  and  concomitant  attempt  to  intimidate  and  coerce  her 
into  abandoning  her  constitutionally-protected  right  of  free  speech 
to  express  her  opinion  about  how  Dr.  Reinhard  (and  the  University 
of  Nebraska)  mistreated  the  remains  of  her  Ponca  ancestors-- 
mistreatment  which  a  University  attorney  has  already  concluded  was 
"clearly  illegal"  under  federal  law. 

Sincerely, 


Enc 


Robert  M.  Peregoy 


cc  w/enc:  Ms.  Judi  Morgan,  Director 

Nebraska  Indian  Commission 
The  Honorable  Fred  LeRoy,  Chairman 

Ponca  Tribe  of  Nebraska 
Mr.  Chuck  Kasserbrook,  Member 

Board  of  Regents,  University  of  Nebraska 
Dr.  Joan  Leitzel,  Interim  Chancellor 

University  of  Nebraska,  Lincoln 
Dr.  James  Moeser,  Chancellor 

University  of  Nebraska,  Lincoln 
Dr.  Pricella  Grew 

Vice  Chancellor  for  Research,  UNL 
Dr.  Brian  Foster,  Dean 

College  of  Letters  and  Science,  UNL 
Dr.  Ray  Hames,  Chairman 

Anthropology  Department,  UNL 
Dr.  Thomas  P.  Myers 

Repatriation  Director,  UNL 
Mr.  John  Wiltse,  Esq. 

Associate  General  Counsel,  UNL 
Dr.  Steve  Holen,  Research  Archaeologist 

University  of  Nebraska,  Lincoln 
Ms.  Melanie  J.  Whittamore-Mantzios,  Esq. 

Asst.  Attorney  General,  Nebraska 
Mr.  Joe  Dugan,  Lincoln  Journal-Star 
Mr.  John  Dendy 


177 


STATEMENT  OF  KATHERINE  H.  STEVENSON,  ASSOCIATE  DIRECTOR,  CULTURAL 
RESOURCE  STEWARDSHIP  AND  PARTNERSHIPS,  NATIONAL  PARK  SERVICE, 
DEPARTMENT  OF  THE  INTERIOR,  BEFORE  THE  COMMITTEE  ON  INDIAN 
AFFAIRS,  UNITED  STATES  SENATE,  REGARDING  THE  STATUS  OF 
IMPLEMENTATION  OF  THE  NATIVE  AMERICAN  GRAVES  PROTECTION  AND 
REPATRIATION  ACT. 

December  6,  1995 

Mr.  Chairman,  I  appreciate  the  opportunity  to  appear  before  your 
committee  to  discuss  the  status  of  implementation  of  the  Native 
American  Graves  Protection  and  Repatriation  Act  (NAGPRA) . 


NAGPRA  was  enacted  on  November  16,  1990,  to  address  the  rights  of 
lineal  descendants,  Indian  tribes,  and  Native  Hawaiian 
organizations  to  Native  American  human  remains,  funerary  objects, 
sacred  objects,  and  objects  of  cultural  patrimony  with  which  they 
are  affiliated.  The  Secretary  of  the  Interior  is  responsible  for 
implementation  of  the  statute.  Principal  among  the  Secretary's 
responsibilities  are: 

o  developing  regulations  implementing  the  statute; 
o  administering  a  program  of  grants  to  assist  museums,  Indian 
tribes,  and  Native  Hawaiian  organizations  in  complying  with 
their  responsibilities  under  the  statute;  and 
o  creating  a  review  committee  of  seven  private  citizens  to 
advise  on  regulations  and  assist  in  other  aspects  of 
implementation  of  the  statute. 

In  the  five  years  since  NAGPRA 's  enactment,  the  National  Park 
Service  (NPS)  has  taken  a  variety  of  steps  on  behalf  of  the 
Secretary  to  implement  the  statute.   The  NPS  has  the  appropriate 
governmentwide  mandate  for  working  with  other  Federal  agencies  on 


178 


this  issue  as  the  NPS  represents  the  Secretary  in  matters  related 
to  collections  management  and  care  of  archeological  collections 
and  has  staff  expertise  in  curat ion  generally.   Also,  NPS  has 
worked  very  closely  with  Indian  tribes  and  Native  Hawaiian 
organizations  to  preserve  and  protect  cultural  resources  related 
to  tribes  throughout  the  country. 

My  predecessor,  Jerry  Rogers,  provided  information  at  this 
committee's  previous  oversight  hearing  on  May  27,  1993.   I  would 
like  to  update  the  committee  on  activities  since  that  time. 

Regulations:   On  May  28,  1993,  proposed  regulations  implementing 
the  statute  were  published  for  public  review  and  comment  in  the 
Federal   Register.      Copies  of  the  proposed  rule  were  sent  to  the 
chief  executive  officers  of  all  Indian  tribes,  Alaska  Native 
villages  and  corporations,  Native  Hawaiian  organizations, 
national  Indian  organizations  and  advocacy  groups,  national 
scientific  and  museum  organizations,  and  state  and  Federal  agency 
historic  preservation  officers  and  chief  archaeologists.   Eighty- 
two  written  comments  were  received,  representing  89  separate 
organizations  and  individuals.   These  included  thirteen  Indian 
tribes,  ten  Native  American  organizations,  nine  museums,  seven 
universities,  three  national  scientific  and  museum  organizations, 
eleven  state  agencies,  nineteen  Federal  agencies,  nine  other 
organizations,  and  eight  individuals.   Several  letters 


179 


represented  more  than  one  organization.   Comments  addressed 
nearly  all  sections  and  appendices  of  the  proposed  rule. 

All  comments  were  fully  considered  when  revising  the  proposed 
rule  in  the  final  rulemaking.   A  draft  of  the  final  rule  was 
evaluated  and  revised  in  consultation  with  the  review  committee 
at  its  September,  1993,  meeting  in  Washington.   Further 
consultation  with  the  review  committee  occurred  at  subsequent 
meetings  in  Phoenix  and  Rapid  City  in  February  and  May,  1994. 
The  draft  final  rule,  with  an  extensive  preamble  evaluating  all 
substantive  comments,  was  submitted  for  Departmental  review  in 
September,  1994.   The  review  of  these  regulations  within  the 
Department  of  the  Interior  has  been  extensive  and  intensive.  The 
Bureau  of  Indian  Affairs,  Bureau  of  Land  Management,  Bureau  of 
Reclamation,  Fish  and  Wildlife  Service,  Office  of  Surface  Mining, 
as  well  as  several  sections  of  the  Office  of  the  Solicitor  and 
the  Assistant  Secretaries  for  Indian  Affairs,  Land  and  Minerals 
Management,  and  Water  and  Science  took  part  in  these  discussions. 
The  regulations  were  approved  by  Assistant  Secretary  for  Fish  and 
Wildlife  and  Parks,  George  T.  Frampton,  Jr.,  on  September  20, 
1995,  and  the  final  rule  was  published  in  the  Federal  Register   on 
December  4,  1995. 

Grants:   Funds  to  institute  the  grants  program  were  first 
requested  and  appropriated  in  FY  1994.   The  program  was  continued 
in  FY  1995  and  is  included  in  the  Conference  Report  in  the 


180 


FY  1996  budget.   Since  its  inception,  83  NAGPRA  grant  awards 
totalling  $4.37  million  have  been  awarded  by  the  Secretary. 
Three  hundred  and  thirty-seven  proposals  were  submitted  over  the 
past  two  years,  with  a  total  request  of  nearly  $30  million. 
Section  10  of  the  statute  authorizes  the  Secretary  to  make  grants 
to  museums  to  assist  them  in  conducting  inventories  and 
identification  required  under  the  Act,  and  to  Indian  tribes, 
Alaska  Native  villages  and  corporations,  and  Native  Hawaiian 
organizations  to  assist  in  the  repatriation  of  human  remains  and 
cultural  items.   Grants  have  been  provided  for  educational 
workshops,  compiling  inventories,  reviewing  documentation,  and 
coordinating  tribal-museum  discussions  on  cultural  affiliation. 

Review  Committee:   The  Native  American  Graves  Protection  and 
Repatriation  Review  Committee,  initially  established  in  April, 
1992,  has  met  eleven  times.   The  committee  was  established  to 
monitor  implementation,  consult  with  the  Secretary,  advise 
Congress,  and  facilitate  the  resolution  of  disputes.   The 
committee  has  been  deeply  involved  in  development  of  the 
regulations  as  I  have  already  indicated.   The  committee  also  has 
spent  considerable  time  in  facilitating  resolution  of  five 
disputes:   two  have  been  resolved,  recommendations  have  been  made 
on  a  third,  and  two  are  under  active  consideration.   The  review 
committee  has  provided  two  reports  to  the  Senate  Committee  on 
Indian  Affairs  and  its  counterpart  in  the  House,  discussing  more 
fully  its  activities  and  making  several  specific  recommendations. 


181 


Eight  hundred  and  forty-seven  museums  and  Federal  agencies  have 
provided  summaries  of  their  collections  to   Indian  tribes  and 
Native  Hawaiian  organizations.   Several  inventories  are  almost 
complete,  although  a  number  of  museums  have  applied  for 
extensions.   While  major  progress  has  been  made  by  Federal 
agencies  and  museums,  efforts  are  ongoing  and  completion  is 
anticipated  in  the  near  future,  subject  to  available  funds. 

Sixty-six  statutorily  required  Federal   Register   notices  have 
announced  museum  and  Federal  agency  willingness  to  repatriate 
2,713  human  remains,  122,948  funerary  objects,  212  sacred 
objects,  and  16  objects  of  cultural  patrimony.   Federal  agencies 
are  actively  involved  in  consultation  \nd  determinations  of 
custody  related  to  excavations  and  inadvertent  discoveries  on 
Federal  and  tribal  land.   Museums  and  Federal  agencies  have 
shared  information  about  their  collections  with  culturally 
affiliated  Indian  tribes  and  Native  Hawaiian  organizations. 
Grant  support  has  been  provided  to  some  Indian  tribes,  Native 
Hawaiian  organizations,  and  museums.   The  review  committee  is 
actively  involved  in  monitoring  implementation,  consulting  with 
the  Secretary,  advising  Congress,  and  facilitating  the  resolution 
of  disputes. 

Future  Actions:   The  next  phase  of  implementation  will  in  many 
ways  be  more  difficult  than  the  first.   With  documentation  in 
hand,  Indian  tribes  and  Native  Hawaiian  organizations  are  now 


182 


beginning  the  protracted  and  potentially  contentious  consultation 
process  to  verify  their  rights  to  particular  Native  American 
human  remains,  funerary  objects,  sacred  objects,  and  objects  of 
cultural  patrimony.   The  support  of  this  Committee  is  needed  to 
guarantee  the  dialogue  continues.   I  would  like  to  take  this 
opportunity  to  bring  to  your  attention  four  specific  areas  of 
concern: 

1)  The  grant  program  initiated  in  FY  1994  is  needed  now  more 
than  ever  to  facilitate  reviewing  documentation, 
establishing  cultural  affiliation,  promoting  ongoing 
dialogue  between  Indian  tribes,  Native  Hawaiian 
organizations,  Federal  agencies  and  museums; 

2)  The.  continued  appropriations  for  NAGPRA  implementation 
within  the  budgets  of  Federal  agencies,  particularly  the 
land  management  agencies  with  the  largest  collections  and 
lands  to  manage;  i.e.,  NPS,  BLM,  FWS,  BOR,  and  the  Corps  of 
Engineers,  are  essential  if  the  agencies  are  to  meet  their 
statutory  requirements; 

3)  Publication  of  Federal  Register  notices  on  time  may  be 
difficult  given  available  resources.  This  could  delay 
repatriations; 


183 


4)  The  number  of  disputes  is  expected  to  increase,  making  it 
more  difficult  to  resolve  conflicts  between  museums,  Indian 
tribes,  and  Native  Hawaiian  organizations;  and 

5)  Impending  publication  of  civil  penalty  regulations,  needed 
to  ensure  compliance  with  the  statute,  will  require 
additional  effort  to  meet  new  enforcement  responsibilities. 

Mr.  Chairman,  we  have  worked  to  implement  this  important  statute 
as  expeditiously  as  possible.   We  will  strive  to  do  our  utmost  to 
fulfill  our  obligations  under  current  budgetary  constraints. 

This  concludes  my  prepared  remarks,  Mr.  Chairman.   I  will  be 
pleased  to  answer  any  questions  you  may  have. 


184 


United  States  Department  of  the  Interior  amhugI: 

NATIONAL  PARK  SERVICE 
P.O.  Box  37127 
in replvkeferto  Washington,  DC.  20013-7127 


MAR  2  |   1996 


W3823(2275) 

Honorable  John  McCain 

Chairman 

Committee  on  Indian  Affairs 

United  States  Senate 

Washington,  DC  20510-6450 

Dear  Senator  McCain: 

I  apologize  for  the  lateness  of  this  reply  to  your  request  for  additional  information  from  the 
National  Park  Service  and  the  Department  of  the  Interior  regarding  implementation  of  the 
Native  American  Graves  Protection  and  Repatriation  Act.  We  did  not  receive  your 
December  15,  1995,  request  until  mid-January  due  to  the  extended  shut-down  of  the 
National  Park  Service.  Many  of  your  questions  have  several  parts.  In  organizing  this 
response,  we  have  divided  some  questions  into  subsections  labelled  by  letters,  e.g.  (a), 
(b),  (c),  etc..  We  hope  this  will  keep  our  reply  clear. 

1 .    (a)  Could  you  describe  what  criteria  the  Department  is  considering  in  order  to  grant  the 
time  extensions?  (b)  How  long  does  the  Department  anticipate  it  will  take  to  complete 
all  inventories  and  facilitate  the  repatriation  process?  (c)  Has  there  been  any 
consultation  with  Indian  tribes  in  the  development  of  extension  criteria? 

(a)  Section  5  (c)  of  the  Act  stipulates  that  "the  Secretary  may  extend  such  time 
requirements  for  any  such  museum  upon  a  finding  of  good  faith  effort.  An 
indication  of  good  faith  shall  include  the  development  of  a  plan  to  carry  out  the 
inventory  and  identification  process."  Museums  appealing  to  the  Secretary  for  an 
extension  to  the  November  16,  1995,  deadline  for  inventory  completion  were 
required  to  submit: 

i.     A  letter  from  the  museum's  governing  body  describing  the  reasons  for  the 
institution's  expected  failure  to  meet  the  November  16,  1995  deadline; 

ii.    A  description,  organized  by  archeological  site  and/or  geographic  source,  of 
Native  American  human  remains  and  associated  funerary  objects  in  the 
museum's  collection,  including  those  on  loan,  which  estimates  the  minimum 
number  of  individuals  and  the  minimum  number  of  associated  funerary  objects 
and  identifies  the  current  location  of  each; 

iii.  A  listing  of  the  name,  title,  and  phone  number  of  all  Indian  tribe,  Alaska  Native 
village  and  corporation,  and  Native  Hawaiian  organization  officials  and  traditional 
religious  leaders  who  have  been  consulted  regarding  the  cultural  affiliation  of  the 
human  remains  and  associated  funerary  objects  (contacts  may  be  confirmed 
prior  to  issuance  of  any  extension);  and 


185 


iv.  A  written  plan  to  complete  the  inventory  by  a  specific  date,  including 

identification  of  the  steps  necessary  to  complete  the  inventory;  position  titles  of 
the  persons  responsible  for  completion  of  each  step;  a  schedule  for 
implementing  provisions  of  the  written  plan;  and  a  description  of  efforts,  in 
addition  to  submission  of  this  application,  to  obtain  the  requisite  funding. 

(b)  As  of  February  6,  1996,  469  inventories  had  been  received  from  museums  and 
Federal  agencies.  Additional  completed  inventories  are  expected  before  the  May  16, 
1996,  deadline  for  notification.  Eighty  museums  have  appealed  for  more  time  to 
complete  their  inventories.  These  appeals  are  under  review  at  this  time.  The 
maximum  extension  being  considered  at  this  time  is  three  years.  All  other 
inventories  should  have  been  completed  by  November  16,  1995.  However,  the 
repatriation  process  can  be  expected  to  extend  indefinitely  as  Indian  tribes  and 
Native  Hawaiian  organizations  continue  to  review  the  summaries  and  inventories 
and  prepare  claims.  There  is  no  statute  of  limitations  for  tribal  claims. 

(c)  Extension  criteria  were  discussed  at  Review  Committee  meetings  --  all  of  which  are 
open,  public  meetings  --  by  members  of  the  committee.  Members  of  the  public, 
including  tribal  representatives,  attended  the  meetings  regularly  and  expressed  their 
concerns  on  a  variety  of  matters,  including  these  issues.  The  criteria  require  the 
museum  to  provide  evidence  of  consultation  with  culturally  affiliated  Indian  tribes 
before  an  extension  appeal  will  be  considered. 

2.    (a)  How  is  the  Department  preparing  for  the  backlog  of  inventories?  (b)  What  time  limit 
will  the  Department  establish  for  the  completion  of  inventories? 

(a)  The  National  Park  Service  NAGPRA  staff  is  currently  evaluating  each  inventory  for 
completeness,  preparing  all  notices  of  inventory  completion  for  publication  in  the 
Federal  Register,  and  preparing  a  list  of  all  culturally  unidentifiable  human  remains 
to  provide  to  the  Review  Committee.  At  current  staff  levels  this  process  is 
anticipated  to  take  two  to  three  years.  More  rapid  processing  of  inventories  would 
require  additional  resources. 

(b)  All  inventories  should  have  been  completed  by  November  16,  1995.  Eighty 
museums  have  appealed  for  extensions  to  this  deadline.  The  Department  is 
currently  evaluating  these  appeals  based  upon  evidence  of  the  museum's  good  faith 
efforts  to  date  and  substantial  numbers  of  human  remains  and  funerary  objects 
subject  to  the  statute  that  they  hold.  At  this  time,  the  Department  is  considering  a 
three  year  maximum  extension  of  the  inventory  deadline.  Fourteen  of  the  largest 
natural  history  museums  have  appealed  for  more  than  a  one  year  extension  to 
complete  their  inventories. 

3.   When  do  you  anticipate  that  the  proposed  regulations  to  implement  the  civil  penalty 
provisions  under  section  10  of  the  Act  will  be  published? 

Draft  regulations  establishing  due  process  procedures  to  implement  section  9  of  the 
Act  have  been  developed  in  consultation  with  the  Review  Committee  and,  following 
formal  review  within  the  Department  and  the  Office  of  Management  and  Budget,  will 


186 


soon  be  ready  for  publication  in  the  Federal  Register.  The  Department  is  considering 
publishing  these  procedures  as  an  interim  rule  that  would  go  into  effect  while  public 
comment  is  being  considered  in  order  to  circumvent  the  possibility  of  being  unable  to 
assess  a  penalty  due  to  expiration  of  the  statute  of  limitations.  The  draft  of  this  section 
has  been  pre-reviewed  by  all  relevant  offices  within  the  Department  in  order  to 
expedite  the  formal  review  process  once  the  decision  to  proceed  has  been  made.  We 
hope  to  begin  the  formal  review  process  soon  and  have  the  regulations  published  as  an 
interim  rule  in  the  near  future. 

(a)  How  will  the  Department  of  the  Interior  work  with  Indian  tribes  to  determine  the 
disposition  and  treatment  of  unidentifiable  human  remains?  (b)  Are  you  aware  of  any 
proposals  regarding  disposition  of  culturally  unidentifiable  human  remains  currently 
under  consideration? 

(a)  Section  8  (c)(5)  of  the  Act  requires  the  seven  person  Native  American  Graves 
Protection  and  Repatriation  Review  Committee  to  recommend  specific  actions  for 
developing  a  process  for  the  disposition  of  culturally  unidentifiable  Native  American 
human  remains.  In  the  spring  of  1995,  the  Review  Committee  distributed  a  draft  of 
its  recommendations  for  public  comment  to  all  Indian  tribes  and  Native  Hawaiian 
organizations,  as  well  as  museums.  Federal  agencies,  and  national  scientific  and 
museum  organizations.  The  Review  Committee  is  currently  considering  the  1  20 
written  comments  it  received  and  has  indicated  its  desire  to  circulate  a  revised  draft 
in  1996. 

(b)  The  Review  Committee's  draft  recommendations,  which  are  currently  being 
redrafted  for  further  review,  is  the  only  document  being  considered  at  present. 

(a)  Could  you  provide  an  estimate  on  the  approximate  number  of  inventories  that  have 
been  received  by  the  Department?  (b)  Could  you  provide  an  estimate  on  the  number  of 
time  extensions  requests  received  from  museums  and  Federal  agencies?  (c)  Will  the 
Department  notify  Indian  tribes  of  the  extensions  granted  to  specific  museums  or 
Federal  agencies? 

(a)  As  of  February  1,  1996,  we  have  received  469  inventories  from  museums  and 
Federal  agencies.  Additional  inventories  are  expected  by  the  May  16,  1996, 
notification  deadline. 

(b)  Eighty  appeals  for  extensions  to  the  November  16,  1995,  deadline  for  inventory 
completion  have  been  received  from  museums.  The  statute  does  not  provide  for 
extensions  for  Federal  agencies. 

(c)  A  list  of  all  extensions  is  being  published  in  the  Federal  Register  and  next  issue  of 
Common  Ground  [formerly  Federal  Archeology],  the  National  Park  Service's 
quarterly  publication  on  Federal  archeology  and  ethnography.  This  publication  is 
received  by  all  Indian  tribes  and  Native  Hawaiian  organizations,  as  well  as  by 
individual  Native  Americans.  The  publication  is  also  received  by  museums.  Federal 
agencies,  and  national  scientific  and  museum  organizations. 


187 


6.  Does  the  Park  Service  or  the  Review  Committee  have  a  process  to  monitor  museums 
conducting  excessive,  expensive,  and  time  consuming  studies  under  the  guise  of 
"documenting"  or  "inventorying"? 

Complaints  regarding  museum  and  Federal  agency  compliance  with  provisions  of  the 
statute  can  be  directed  to  the  Secretary  or  the  Review  Committee.  We  have  no 
separate  procedures  for  monitoring  museum  compliance. 

7.  Did  the  Park  Service  engage  in  any  consultation  with  Indian  tribes,  tribal  or  museum 
organizations  over  promulgation  of  the  regulations  beyond  publishing  the  draft 
regulations  in  the  Federal  Register  and  consultation  with  the  Review  Committee? 

Three  drafts  of  what  eventually  was  published  as  the  proposed  regulations  were 
distributed  to  Indian  tribes,  museums,  Federal  agencies,  and  national  scientific  and 
museum  organizations.  Comments  on  these  drafts  were  considered  in  preparing  the 
proposed  regulations. 

8.  What  level  of  priority  has  the  Park  Service  placed  on  requesting  funds  for  grants? 

The  National  Park  Service  has  placed  a  high  priority  on  maintaining  the  grants  program 
in  the  face  of  necessary  budget  reductions. 

The  following  questions  were  submitted  on  behalf  of  the  Committee's  Vice  Chairman, 
Senator  Inouye.  To  distinguish  them  from  the  preceding  questions,  we  have  labeled  them 
using  the  Senator's  name  as  a  prefix,  e.g.  "Inouye  1,"  Inouye  2,"  etc. 

Inouye  1.  Could  you  please  provide  the  Committee  with  a  list  of  grantees  for  FY  1994  and 
FY  1995? 

A  list  of  all  grantees  is  enclosed. 

Inouye  2.  (a)  Couldn't  section  10.10  (b)(2)  of  the  regulations  delay  repatriation  or  limit  the 
authority  of  a  museum  or  Federal  agency  to  repatriate?  (b)  What  would  happen  if  a 
museum  simply  fails  to  comply  with  the  inventory  requirement?  (c)  Is  repatriation 
prohibited  if  a  museum  fails  to  complete  its  inventory?  (d)  What  is  the  longest  extension 
for  inventory  completion  that  will  be  given?  (e)  Will  multiple  extensions  be  permitted? 

(a)  The  thirty  day  waiting  period  following  publication  of  the  notice  of  inventory 
completion  in  the  Federal  Register  is  intended  to  satisfy  due  process  considerations 
by  alerting  any  possible  additional  claimant  of  the  impending  repatriation.  This 
requirement  has  been  waived  for  two  repatriations  that  were  pending  on  November 
16,  1990,  consistent  with  section  1 1  (2)  of  the  Act. 

(b)  Inventories  are  intended  to  provide  all  lineal  descendants,  Indian  tribes,  and  Native 
Hawaiian  organizations  with  the  information  needed  to  claim  human  remains  and 
associated  funerary  objects.  Any  museum  that  does  not  complete  the  inventory  of 
human  remains  and  associated  funerary  objects  in  its  collection  has  failed  to  comply 


188 


with  provisions  of  the  Act  and  could  be  liable  for  civil  penalties  under  section  9  of 
the  Act. 

(c)  The  only  exemption  to  completing  an  inventory  prior  to  repatriation  would  be  if  the 
repatriation  was  pending  on  November  16.  1990  consistent  with  section  1 1  (2)  of 
the  Act. 

(d)  Three  years. 

(e)  Multiple  extensions  are  not  anticipated  at  this  time. 

Inouye  2.  [number  repeated  in  original]  (a)  Why  is  notice  of  the  entire  inventory  completion 
needed  to  satisfy  due  process?  (b)  Wouldn't  due  process  be  satisfied  by  the  notice 
requirement  pertaining  to  specific  repatriations  or  even  by  a  letter  from  the  museum  or 
Federal  agency  to  potential  competing  claimants? 

(a)  The  National  Park  Service  has  encouraged  museums  and  Federal  agencies  to 
expedite  completion  of  inventories  for  portions  of  their  collections  which  have 
elicited  the  interest  of  Indian  tribes  and  Native  Hawaiian  organizations.  Completion 
of  an  entire  inventory  is  not  required  in  order  to  proceed  with  a  notice  of  inventory 
completion  or  a  notice  of  intent  to  repatriate.  All  of  the  65  notices  thus  far 
published  in  the  Federal  Register  are  for  portions  of  museum  or  Federal  aqencv 
collections. 

(b)  All  of  the  65  notices  that  have  thus  far  been  published  in  the  Federal  Register  relate 
to  specific  repatriations  and  not  to  a  museum  or  Federal  agency's  entire  collection 
Notification  by  letter  might  satisfy  due  process  considerations  but  is  not  what  the 
Act  requires. 

Inouye  3.  (a)  What  happens  if  a  tribe  that  clearly  has  a  claim  with  regard  to  remains  or 
objects  discovered  on  Federal  land  states  that  it  does  not  want  any  studies  or  analyses  of 
the  remains  and  the  Federal  agency  disagrees?  (b)  Are  invasive  activities  permitted  over 
the  objection  of  a  tribe  with  the  clear  right  to  custody  of  the  items? 

(a)  Federal  agencies  are  precluded  from  any  activity  in  the  vicinity  of  inadvertently 
discovered  human  remains  or  cultural  items,  beyond  protecting  the  items 
discovered,  for  a  period  of  thirty  days  while  consultation  with  affiliated  Indian  tribes 
or  Native  Hawaiian  organizations  proceed.  The  Federal  agency  is  responsible  for 
determining  necessary  investigations  and  recording  if  human  remains  or  cultural 
items  must  be  removed.  Any  such  excavation  must  be  conducted  following  the 
requirements  of  the  Archaeological  Resources  Protection  Act  (ARPA)  as  stated  in 
section  3  (c)  of  the  statute.  Meeting  the  requirements  of  ARPA  involves  appropriate 
description  and  analysis  of  any  excavated  human  remains  and  cultural  items.  We 
have  encouraged  Federal  agencies  to  develop  in  consultation  with  affiliated  Indian 
tribes  mutually  acceptable  methods  for  recording  and  analysis.  However,  the 
Federal  agencies  have  the  responsibility  for  determining  appropriate  recording 
measures  within  the  requirements  of  ARPA. 


189 


(b)  No  studies  may  be  conducted  that  delay  repatriation,  unless  the  study  has  been 
determined  to  be  of  major  benefit  to  the  United  States.  The  Federal  agency  or 
museum  is  responsible  for  determining  necessary  investigations  and  recording. 

Inouye  4.  Are  there  any  limitations  on  the  treatment  of  human  remains  and  cultural  items 
during  the  period  before  an  Indian  tribe  or  Native  Hawaiian  organization  can  actually 
assume  custody  of  unearthed  materials? 

The  statute  cannot  be  used  to  authorize  additional  scientific  studies.  However,  the 
statute  does  not  restrict  such  treatment  as  long  as  repatriation  is  not  delayed. 

Inouye  5.  What  happens  to  remains  and/or  cultural  items  if  one  tribe  clearly  has  a  claim 
based  upon  the  site  being  located  on  its  aboriginal  land,  but  it  is  not  known  whether 
another  tribe  may  have  a  claim  based  upon  affiliation? 

For  new  excavations  or  inadvertent  discoveries,  Federal  agency  officials  are  required  to 
consult  with  any  lineal  descendant,  tribal  land  owner,  culturally  affiliated  Indian  tribe  or 
Native  Hawaiian  organization,  Indian  tribe  that  aboriginally  occupied  the  site  area,  and 
Indian  tribe  with  some  "other  cultural  relationship"  prior  to  determining  the  disposition 
of  discovered  or  excavated  human  remains  or  cultural  items.  The  Federal  agency  is 
required  to  repatriate  upon  the  request  of  an  Indian  tribe  from  whose  aboriginal  lands 
the  human  remains  or  cultural  items  came  if  no  lineal  descendant,  tribal  land  owner,  or 
culturally  affiliated  Indian  tribe  or  Native  Hawaiian  organization  is  identified. 

Inouye  6.  (a)  What  is  the  meaning  given  to  "sufficient  legal  interest?"  (b)  Could  a  museum 
possess  and  display  items  on  a  long-term  basis,  yet  be  said  not  to  possess  the  items  for 
purposes  of  NAGPRA? 

(a)  "Sufficient  legal  interest"  means  adequate  authority  to  exercise  restraining  or 
directing  control  over  something. 

(b)  Yes,  museums  do  not  generally  have  sufficient  legal  interest  in  items  on  loan  from 
private  individuals  for  the  statute  to  apply. 

Inouye  7.  Will  the  list  of  Indian  tribes  covered  by  the  Act  include  all  tribes  that  receive 
services  from  any  Federal  agency,  or  will  it  be  limited  to  tribes  that  are  recognized  by  the 
Department  of  the  Interior? 

The  definition  of  Indian  tribe  used  in  the  statute  was  explicitly  drawn  from  the  Indian 
Self  Determination  Act.  The  list  of  Indian  tribes  with  standing  to  make  claims  under 
NAGPRA  includes  Indian  tribes  listed  in  the  Bureau  of  Indian  Affairs  list  in  the  Federal 
Register,  plus  Alaska  Native  village  and  regional  corporations  eligible  for  self 
determination  contracts. 

Inouye  8.  Do  you  have  any  recommendations  or  suggestions  to  address  your  concerns 
regarding  the  ongoing  implementation  of  the  Act? 


23-074    96-7 


190 


The  continuing  implementation  of  the  statute  remains  challenging.  With  inventory 
documentation  in  hand,  Indian  tribes  and  Native  Hawaiian  organizations  are  beginning 
the  consultation  process  to  verify  their  rights  to  particular  human  remains,  funerary 
objects,  sacred  objects,  and  objects  of  cultural  patrimony.  We  have  identified  four 
specific  areas  of  concern: 

a.  Publication  of  Federal  Register  notices  to  fulfill  Constitutional,  statutory,  and 
regulatory  due  process  requirements  may  delay  repatriations.  The  Secretary  is 
required  to  publish  notices  in  the  Federal  Register  prior  to  a  museum  or  Federal 
agency  repatriating  human  remains,  funerary  objects,  sacred  objects,  or  objects  of 
cultural  patrimony  to  culturally  affiliated  Indian  tribes  or  Native  Hawaiian 
organizations.  The  publication  cost  of  one  notice  averages  $264.  Sixty-five  notices 
have  been  published  since  1992.  As  noted  above,  nearly  500  inventories  have  been 
submitted  at  present.  If  each  inventory  requires  only  one  Federal  Register  notice, 
and  it  is  our  experience  that  large  inventories  may  require  several,  the  cost  of 
Federal  Register  notice  publication  this  year  will  be  over  $100,000. 

b.  The  number  of  disputes  is  expected  to  increase,  further  complicating  our  ability  to 
schedule  review  committee  meetings  and  thus  prolonging  conflicts  between 
museums,  Indian  tribes,  and  Native  Hawaiian  organizations.  The  review  committee 
has  thus  far  considered  four  disputes.  The  number  of  disputes  is  expected  to  rise 
now  that  most  museums  and  Federal  agencies  have  provided  Indian  tribes  with 
information  about  their  collections. 

c.  Impending  publication  of  civil  penalty  regulations,  needed  to  ensure  compliance 
with  the  statute,  will  result  in  new  enforcement  responsibilities.  Section  9  of  the 
statute  authorized  the  Secretary  to  assess  civil  penalties  against  any  museum  that 
fails  to  comply  with  the  Act.  Regulations,  required  to  ensure  due  process,  have 
been  developed  in  consultation  with  the  review  committee.  The  Department  is 
considering  issuing  these  procedures  as  an  interim  rule  that  would  take  effect 
immediately  to  guard  against  museums  avoiding  an  assessment  because  the  statute 
of  limitations  expired.  The  Office  of  the  Solicitor  has  estimated  that  one  civil 
penalty  case   -  from  initial  investigation  to  final  appeal   -  could  cost  the  Department 
$100,000  in  staff  time  and  resources. 

d.  The  grant  program  initiated  in  FY  1994  is  needed  to  facilitate  ongoing  dialogue 
between  Indian  tribes,  Native  Hawaiian  organizations,  and  museums.  The 
Congressional  Budget  Office  estimated  in  1 990  that  implementation  of  the  Act 
would  cost  $50  million  over  five  years.  Since  its  inception,  83  NAGPRA  grant 
awards  totalling  $4.37  million  have  been  awarded  by  the  Secretary.  Three  hundred 
and  thirty-seven  proposals  were  submitted  over  the  past  two  years  with  a  total 
request  of  nearly  $30  million. 

e.  Two  technical  amendments  to  the  statute  should  be  considered: 

1 .  Amend  section  8  (c)(5)  to  make  the  review  committee  responsible  for 
"compiling  an  inventory  of  culturally  unidentifiable  human  remains  and 
associated  funerary  objects  that  are  in  the  possession  or  control  of  each  Federal 


191 


agency  and  museum  and  recommending  specific  actions  for  developing  a 
process  for  their  disposition. 

2.    Amend  section  9  as  follows: 

<e)  Enforcement.  Penalties  collected  under  this  section  will  supplement  the 
appropriation  bearing  the  cost  of  related  enforcement  activities.  The 
Secretary  may: 

HI  pay  to  any  person  who  furnishes  information  which  leads  to  the  finding 
of  a  civil  penalty  (except  officers  or  employees  of  the  United  States  or 
any  State  or  local  government  who  furnishes  information  or  renders 
service  in  the  performance  of  official  duties)  an  amount  not  to  exceed 
one  half  of  such  penalty  or  $  1000,  whichever  is  less;  and 

(2)  reduce  a  penalty  if  the  violator  agrees  to  pay  appropriate  restitution  to 
the  aggrieved  party  or  parties  or  may  pay  to  aggrieved  parties  as 
restitution  an  amount  not  to  exceed  the  amount  of  the  penalty. 

The  following  questions  deal  specifically  with  implications  of  Na  Iwi  v.  Dalton  et  al.  To 
distinguish  them  from  the  preceding  questions,  we  have  labeled  them  using  the  site 
location  as  a  prefix,  e.g.  "Mokapu  1,"  Mokapu  2,"  etc. 

Mokapu  1 .  (a)  Should  information  derived  from  the  NAGPRA  inventory  process  be  subject 
to  public  disclosure?  (b)  Should  Congress  amend  NAGPRA  to  provide  protection  from 
public  disclosure  of  information  derived  from  NAGPRA  inventories?  (c)  Should  protection 
of  information  from  NAGPRA  inventories  from  public  disclosure  be  limited  in  scope?  (d) 
Should  NAGPRA  inventory  information  be  exempted  from  the  application  of  the  Freedom 
of  Information  Act? 

(a)  An  inventory  is  an  item-by-item  description  of  Native  American  human  remains  and 
associated  funerary  objects  compiled  by  museums  and  Federal  agencies  to 
determine  the  cultural  affiliation  of  those  items  and  document  that  museums  and 
Federal  agencies  have  adequately  exercised  their  responsibilities  in  complying  with 
the  law.  These  documents  serve  as  records  of  the  human  remains  and  associated 
funerary  objects  currently  under  the  control  of  Federal  agencies  and  museums  and 
of  the  human  remains  and  associated  funerary  objects  repatriated  to  Indian  tribes 
and  Native  Hawaiian  organizations.  Public  access  to  such  information  is  vital  to 
monitor  the  progress  on  repatriation  and  subsequent  treatment  of  repatriated  human 
remains  and  cultural  items. 

(b)  No. 

(c)  If  Congress  wishes  to  consider  this  further,  any  restrictions  on  public  disclosure 
should  be  limited. 

(d)  The  purpose  of  the  Freedom  of  Information  Act  is  to  guarantee  an  informed 
citizenry  so  vital  to  the  functioning  of  a  democratic  society.  The  Supreme  Court  has 


192 


9 

emphasized  that  "[olfficial  information  that  sheds  light  on  an  agency's  performance 
of  its  statutory  duties  falls  squarely  within  that  statutory  purpose."  Amending  the 
Freedom  of  Information  Act  to  exempt  inventory  information  would  largely  preclude 
public  oversight  of  Federal  agencies'  compliance  with  the  NAGPRA,  while  having  no 
effect  on  information  compiled  by  non-Federal  museums.  We  do  not  recommend 
NAGPRA  inventory  information  be  exempted  from  the  Freedom  of  Information  Act. 

Mokapu  2.  (a)  Does  NAGPRA  sufficiently  address  the  issue  of  necessary  scientific  studies 
which  may  be  initiated  during  the  course  of  compiling  an  inventory?  (b)  Do  you  believe 
that  definitions  of  "inventory,"  "scientific  study,"  or  "scientific  information"  may  be 
warranted?  (c)  Under  what  circumstances  would  further  scientific  studies  be  warranted? 

(a)  Yes. 

(b)  The  statutory  definition  of  "inventory,"  which  is  repeated  in  the  final  regulations,  is 
sufficient.  The  term  "scientific  study"  is  used  only  in  section  7  (b)  of  the  statute 
and  43  CFR  10.10  (c)(1)  which  provides  an  exemption  to  expedient  repatriation  in 
circumstances  where  human  remains  and  cultural  items  are  indispensable  to  the 
completion  of  a  specific  scientific  study,  the  outcome  of  which  is  of  major  benefit 
to  the  United  States.  The  exact  nature  of  "scientific"  study  seems  less  important  in 
this  definition  than  what  constitutes  a  "major  benefit  to  the  United  States."  Thus 
far,  no  museum  or  Federal  agency  has  declined  to  repatriate  on  these  groups.  The 
term  "scientific  information"  is  used  in  neither  the  statute  nor  the  regulations.  A 
definition  is  not  needed. 

(c)  When  they  are  identified  to  be  of  major  benefit  to  the  United  States. 

Mokapu  3.  Should  Congress  amend  the  Act  to  provide  authority  for  legal  actions  to  be 
brought  by  who  may  qualify  to  serve  as  guardians? 

The  statute  established  a  new  and  complex  set  of  relationships  between  museums. 
Federal  agencies,  and  Indian  tribes  and  Native  Hawaiian  organizations.  Amending  the 
statute  to  add  a  new  category  of  "guardians"  will  unnecessarily  complicate  and  delay 
the  repatriation  process. 

We  welcome  your  continued  interest  in  implementation  of  this  important  statute.  Please 
contact  me  if  you  have  any  additional  questions. 

Sincerely, 


Katharine  H.  Stevenson 
Associate  Director,  Cultural  Resource 
Stewardship  and  Partnerships 


Enclosure 


193 


NEWS  RELEASE 


u.s.  department  of  the  interior 


national  park  service 

For  Immediate  Release      |     Anita  Clevenger     202/208-6843 

C.  Timothy  McKeown   202-/343-4101 
$2,140,000  AWARDED  IN  NAGPRA  GRANTS 
Secretary  of  the  Interior  Bruce  Babbitt  today  announced 
awards  totalling  $2,140,000  for  41  projects  to  be  conducted  by 
museums,  Indian  tribes,  and  Alaska  Native  villages  and 
corporations  to  assist  in  implementation  of  the  Native  American 
Graves  Protection  and  Repatriation  Act  (NAGPRA) .      — 
f.    Secretary  Babbitt  praised  the  41  projects  as  "exemplifying 

mandated  hv  ft^Tl^^™*11   museums  and  Indian  tribes  that  is 
S?^  by  ^e  A^ :  .  Se=retary  Babbitt  said  funds  have  been 
included  in  the  administration's  budget  request  to  continue 
awarding  NAGPRA  grants  in  Fiscal  Year  1995         continue 

NAGPRA,  enacted  in  1990,  requires  museums  and  Federal 
^Hn^Sf  tol  ^^ntory  and  identify  Native  American  human  remains 
and  cultural  items  in  their  collections  and  to  consult  with 
culturally  affiliated  Indian  tribes,  Alaska  Native  villages  and 
corporations,  and  Native  Hawaiian  organizations  regarding 
repatriation  by  November  16,  1995.   Section  10  of  the  Act 
authorizes  the  Secretary  of  the  Interior  to  award  grants  to 
assist  museums,  Indian  tribes,  Alaska  Native  villages  and 
corporations,  and  Native  Hawaiian  organizations  to  implement 
provisions  of  the  Act.  p    nt 

frnm   Tn!  National  Park  Service  (NPS)  received  220  applications 
fnrt  !»=?■  Indlan.tribes<  Alaska  Native  villages  and  corporations, 
and  Native  Hawaiian  organizations,  and  109  museums  for  requests 
totaling  more  than  $23  million.   Proposals  were  reviewed  by  NPS 
staff  and  a  panel  of  Native  Americans  and  museum  professionals 
Grant  recipients  are  undertaking  a  broad  range  of  projects  to 
implement  NAGPRA,  including  conducting  workshops  and  training 
coordinating  inter-tribal  and  inter-museum  discussions,  and 
hiring  repatriation  coordinators  to  prepare  and  review 
documentation. 

Specific  awards  and  contacts  are  listed  on  the  reverse  side 
of  this  page   Additional  information  regarding  these  awards  can 
ae   obtained  from  Dr.  C.  Timothy  McKeown,  NAGPRA  Program  Leader 
Archeological  Assistance  Division,  National  Park  Service   P  O  ' 
Box  37127,  Washington  DC. 

(over) 


P.O.  Box  37127 


Washington,  DC  20013-7127 


194 


FISCAL  YEAR  1994  GRANTS  TO  ASSIST  IMPLEMENTATION  OF  THE  NATIVE 
AMERICAN  GRAVES  PROTECTION  AND  REPATRIATION  ACT  (NAGPRA) 

LIST  OF  AWARDS  AND  CONTACTS 


Alaska  State  Museums,  Juneau  AK  [Bruce  Kato: 
(907)  465-2901]  $29,700 

Arkansas  Archeological  Survey,  Fayetteville  AR 
[Thomas  J.  Green:  (501)  575-3556]  $74,500 

Bering  Straits  Foundation,  Nome  AK 

[Vernon  Olson:  (907)  443-5252]  $73,400 

Burke  Memorial  Museum,  Seattle  WA 

[James  D.  Nason:  (206)  543-9680]  $74,700 

Caddo  Indian  Tribe  of  Oklahoma,  Binger  OK 

[Elmo  Clark:  (405)  656-2344]  $75,000 

Campo  Band  of  Mission  Indians,  Campo  CA 

[Ralph  Goff:  (619)  478-9046]  $67,800 

Catalina  Island  Museum  Society,  Avalon  CA 
[Patricia  Anne  Moore:  (310)  510-2414]  $13,900 

Central  Council  of  Tlingit  and  Haida  Indian  — 

Tribes  of  Alaska,  Juneau  AK 

[Cheryl  Eldemar:  (907)  463-7186]  $75,000 

Cheney  Cowles  Museum,  Spokane  WA 

[Lynn  Pankonin:  (509)  456-3932]  $57,600 

Cheyenne  River  Sioux  Tribe,  Eagle  Butte  SD 
[James  D.  Picotte:  (605)  964-2543]  $73,200 

Children's  Museum,  Boston  MA 

[Joan  Lester:  (617)  426-6500  x261]  $10,300 

Cincinnati  Museum  of  Art,  Cincinnati  OH 

[Bill  Mercer:  (513)  721-5204]  $15,100 

Columbus  Museum,  Columbus  GA 

[Frank  T.  Schnell:  (706)  649-0713]  $46,300 

Dartmouth  College,  Hanover  NH 

[Kellen  Haak:  (603)  646-3109]  $10,400 

Denver  Art  Museum,  Denver  CO 

[Nancy  Blomberg:  (303)  839-4806]  $62,500 

Hualapai  Tribe,  Peach  Springs  AZ 

[Loretta  Jackson:  (602)  769-2254]  $70,900 

Jicarilla  Apache  Tribe,  Dulce  NM 

[Calvin  Veneno:  (505)  759-3242]  $75,000 

Keepers  of  the  Treasure -Alaska,  Anchorage  AK 
[Jana  Harcharek:  (907)  852-0320]  $37,000 

Kenaitze  Indian  Tribe,  I.R.A.,  Kenai  AK 

[Rita  Smagge:  (907)  283-3633]  $75,000 

Leech  Lake  Band  of  Chippewa,  Cass  Lake  MN 

[Rose  Kluth:  (218)  335-8095]  $57,600 

Los  Angeles  County  Museum  of  Natural  History, 

Los  Angeles  CA 

[Margaret  Hardin:  (213)  744-3381]  $38,000 

Maine  State  Museum,  Augusta  ME 

[John  R.  Phillips:  (207)  287-2301]  $71,700 

Menominee  Indian  Tribe  of  Wisconsin,  Keshena  WI 
[Betty  Jo  Wozniak:  (715)  799-5154]  $54,800 

Mississippi  State  University,  MS 


195 


[John  W.  O'Hear:  (601)  325-3826]  $42,000 

Museum  of  New  Mexico  Foundation,  Santa  Fe  NM 

[Bruce  Bernstein:  (505)  827-6344]  $74,900 

Museum  of  Texas  Tech  University,  Lubbock  TX 

[Mei  Wan  Campbell:  (806)  742-2442]  $20,900 

New  York  State  Museum,  Albany  NY 

[Lynne  P.  Sullivan:  (518)  474-5813]  $82,300 

Oklahoma  Museum  of  Natural  History,  Norman  OK 

[Julie  A.  Droke:  (405)  325-4712]  '  $75,000 

Panhandle-Plains  Historical  Museum,  Canyon  TX 

[Karen  Anderson:  (806)  656-2234]  $49,700 

Peabody  Museum  of  Archaeology  and  Ethnology, 
Cambridge  MA 

[Barbara  Isaac:  (617)  495-2254]  $46,000 

Peabody  Museum  of  Archaeology,  Andover  MA 

[James  W.  Bradley:  (508)  749-4490]  $116,900 

Skokomish  Indian  Tribe,  Shelton  WA 

[Edward  H.  Binder:  (206)  426-4232]  $48,800 

Southern  Ute  Indian  Tribe,  Ignacio  CO 

[Helen  Hoskins:  (303)  563-9583]  $35,400 

Tuolumne  Band  of  Me-Wuk,  Tuolumne  CA 

[Reba  Fuller:  (209) -928-3475]  $73,200 

University  of  Alaska  Museum,  Fairbanks  AK 

[Aldona  Jonaitis:  (907)  474-7505]  $29,400 

University  of  Oregon  Museum  of  Natural  History, 
Eugene  OR 

[Don  Dumond:  (503)  346-5101]  $75,000 

Washoe  Tribe  of  Nevada  and  California, 

Gardnerville  NV  [Jody  Steele:  (702)  265-4191]     $56,100 
Zuni  Pueblo,  Zuni  NM 

[Roger  Anyon:  (505)  782-5558]  $75,000 


TOTAL 


$2,140, 000 


July  14,  1994 


196 


NEWSmEASE 


u.s.department  of  the  interior 


national  park  service 

For  Release:    July    18,    1995  David  Barna         202/208-6843 

Anita  Clevenger   202/208-7394 

INTERIOR  SECRETARY  AWARDS  $2.2  MILLION   IN  NAGPRA  GRANTS 

Secretary  of  the  Interior  Bruce  Babbitt  today  announced  awards  totaling  $2,233,200 
to  assist  museums,  Indian  tribes,  Native  Hawaiian  organizations,  and  Alaska  Native  villages 
and  corporations  with  implementation  of  the  Native  American  Graves  Protection  and 
Repatriation  Act  (NAGPRA).   The  awards  were  divided  among  42  projects.      — 

NAGPRA,  enacted  in  1990,  requires  museums  and  federal  agencies  to  inventory  and 
identify  Native  American  human  remains  and  cultural  items  in  their  collections  and  to  consult 
with  culturally  affiliated  Indian  tribes,  Alaska  Native  villages  and  corporations,  and  Native 
Hawaiian  organizations  regarding  repatriation  by  November  16.  1995. 

The  National  Park  Service  (NPS)  received  117  applications  from  60  Indian  tribes, 
Alaska  Native  villages  and  corporations,  and  Native  Hawaiian  organizations,  and  52 
museums  for  requests  totaling  more  than  $6.2  million.    Proposals  were  reviewed  by  NPS 
staff  and  a  panel  of  Native  Americans  and  museum  professionals.   The  broad  range  of 
projects  being  undertaken  by  grant  recipients  include:   a  repatriation  award  to  the  Pawnee 
Tribe  of  Oklahoma  to  rebury  over  400  ancestral  remains  which  were  previously  located  in 
three  different  museums,  as  well  as  workshops  and  training,  the  coordination  of  inter-tribal 
and  inter-museum  discussions,  and  hiring  repatriation  coordinators  to  prepare  and  review 
documentation. 

In  announcing  the  awards.  Secretary  Babbitt  praised  the  42  projects  as  "continuing  the 
dialogue  between  museums  and  Indian  tribes  that  began  five  years  ago  with  the  passage  of 
the  Act."    Secretary  Babbitt  went  on  to  announce  that  funds  have  been  included  in  the 
administration's  budget  request  to  continue  awarding  NAGPRA  grants  in  Fiscal  Year  1996. 

Specific  awards  and  contacts  are  listed  on  the  reverse  side  of  this  page.    Additional 
information  regarding  these  awards  can  be  obtained  from  Dr.  C.  Timothy  McKeown, 
NAGPRA  Program  Leader,  Archeological  Assistance  Division,  National  Park  Service,  P.O. 
Box  37127,  Washington,  D.C.  20013-7127 


P.O.  Box  37127 


Washinoton.  DC  20013-7127 


197 


FISCAL  YEAR  1995  GRANTS  TO  ASSIST  IMPLEMENTATION  OF  THE  NATIVE 
AMERICAN  GRAVES  PROTECTION  AND  REPATRIATION  ACT  (NAGPRA) 

LIST  OF  AWARDS  AND  CONTACTS 

Bering  Straits  Foundation,  Nome,  AK  [Vernon  Olson:  (907)  443-5252]  $74,960 
Central  Council  of  Tlingit  and  Haida  Indian  Tribes  of  Alaska, 

Juneau,  AK  [Cheryl  Eldemar:  (907)  586-1432]  $51,675 

Cheyenne  River  Sioux  Tribe  of  South  Dakota,  Eagle  Butte,  SD  [James  Picotte:  (605)  964-2542]  $63,430 

Children's  Museum,  Boston,  MA  [Joan  Lester:  (617)  426-6400  x261]  $18,040 

Coquille  Indian  Tribe,  Coos  Bay,  OR  [Troy  Anderson:  (503)  756-0662]  $29,750 

Denver  Art  Museum,  Denver,  CO  [Nancy  Blomberg:  (303)  640-7572]  $57,270 

Detroit  Institute  of  Arts,  Detroit,  MI  [Dr.  David  Penney:  (313)  833-1432]  $14,580 

Eastern  Shawnee  Tribe  of  Oklahoma,  Seneca,  MO  [Leroy  Ellis:  (918)  666-2435]  $64,080 

Field  Museum  of  Natural  History,  Chicago,  IL  (2  projects)  [Dr.  Jonathan  Haas:  (312)  922-9410  x641]  $106,785 

Fort  Lewis  College,  Durango,  CO  [Dr.  Philip  Duke:  (303)  247-7346]  $54,460 

Gila  River  Indian  Community,  Sacaton,  AZ  [Dr.  John  Ravesloot:  (602)  562-3301]  $53,160 

Haffenreffer  Museum  of  Anthropology,  Brown  University,  Bristol,  RI  [Thierry  Gentis  (401)  253-8388]  $28,450 

Hannahville  Indian  Community,  Wilson,  MI  [Patricia  Peterman:  (906)  466-5561]  $67,050 

Illinois  State  Museum,  Springfield,  IL  [Dr.  Robert  Warren:  (217)  524-7903]  $82,105 

Jamestown  S'Klallam  Tribe,  Sequim,  WA  [Elizabeth  Mueller:  (360)  683-1109]  $74,005 

Kaibab  Band  of  Paiute  Indians,  Fredonia,  AZ  (Angelita  Bullerts:  (602)  643-7214]  $73,325 

Kaw  Nation  of  Oklahoma,  Kaw  City,  OK  [Steve  Pensoneau:  (405)  269-2552]  $73,285 

Kenaitze  Indian  Tribe,  IRA,  Kenai,  AK  [Rita  Smagge:  (907)  283-3633]  $73,835 

Mille  Lacs  Band  of  Chippewa  Indians,  Onamia,  MN  [Brenda  Boyd:  (612)  532-4181]  $71,455 

Mohegan  Tribe,  Uncasville,  CT  [Melissa  Fawcett:  (203)  848-2121]  $64,455 

Muscogee  (Creek)  Nation,  Okmulgee,  OK  [Alan  Cook:  (918)  756-8700]  $70,055 

Museum  of  Texas  Tech  University,  Lubbock,  TX  [Mei  Wan  Campbell:  (806)  742-2442]  $41,255 

Nevada  State  Museum,  Carson  City,  NV  [Amy  Dansie:  (702)  687^812]  $26,305 

Office  of  Hawaiian  Affairs,  Honolulu,  HI  [Linda  Delaney:  (808)  586-3777]  $45,160 

Oneida  Tribe  of  Indians  of  Wisconsin,  Oneida,  WI  [Susan  Daniels:  (414)  869-2768]  $47,350 

Pawnee  Tribe  of  Oklahoma,  Pawnee,  OK  [Helen  Norris:  (918)  762-3649]  $7,500 

Peabody  Essex  Museum,  Salem,  MA  [John  Grimes:  (508)  745-1876]  $18,930 
Peabody  Museum  of  Archaeology  and  Ethnology, 

Harvard  University,  Cambridge.  MA  [Dr.  David  Pilbeam:  (617)  495-2254]  $74,935 

Quartz  Valley  Indian  Reservation,  Fort  Jones,  CA  [Cora  Thorn:  (916)  468-5409]  $57,490 

Research  Foundation  of  SUNY-Binghamton,  NY  [Dr.  Nina  Versaggi:  (607)  777-4786]  $74,915 

Rome  Historical  Society,  Rome,  NY  [Barbara  Schafer:  (315)  336-5870]  $35,170 

Standing  Rock  Sioux  Tribe,  Fort  Yates,  ND  [LaDonna  Brave  Bull  Allard:  (701)  854-2120]  $53,500 

Tanadgusix  Corporation,  Anchorage,  AK  [Ron  Philemonoff:  (907)  278-2312]  $71,070 

University  of  Alabama,  Moundville,  AL  [Eugene  Futato:  (205)  371-2266]  $91,570 

University  of  Alaska  Museum,  Fairbanks,  AK  [Gary  Selinger:  (907)  474-7505]  $22,005 

University  of  Nevada,  Las  Vegas,  NV  [Vicki  Cassman:  (702)  895-3590]  $26,305 

University  of  North  Carolina  at  Chapel  Hill,  NC  [Dr.  Vincas  Steponaitis:  (919)  962-6574]  $72,805 
University  of  Pennsylvania  Museum  of 

Archaeology  and  Anthropology,  Philadelphia,  PA  [Dr.  Jeremy  Sabloff:  (215)  898-4000]  $8,190 

White  Mountain  Apache  Tribe,  Whiteriver,  AZ  [Ramon  Riley:  (602)  338-4625]  $55,590 

Yakutat  Tlingit  Tribe,  Yakutat.  AK  [Frances  Lekanof:  (907)  784-3238]  $64,390 

Zuni  Indian  Tribe,  Zuni,  NM  [Roger  Anyon:  (505)  782-4814]  $72,555 

TOTAL  $2,233,200 


198 


TESTIMONY 

BY 
THE  CHAIRMAN  OF  THE 

STANDING  ROCK  SIOUX 
TRIBE 


JESSE  TAKEN  ALIVE 
December  6, 1995 


199 


Good  Morning.  My  name  is  Jesse  Taken  Alive,  and  I  am  Chairman  of  the  Tribal  Business 
Council  of  the  Standing  Rock  Sioux  Tribe.  I  am  here  today  on  behalf  of  the  North  Dakota 
Intertribal  Reinterment  Committee,  which  represents  all  of  our  state's  tribes,  the  Turtle  Mountain 
Band  of  Chipppewa,  the  Devils  Lake  Sioux  Tribe  and  the  Three  Affiliated  Tribes.  1  would  like 
to  extend  my  appreciation  from  our  tribal  governments  to  Chairman  McCain  and  the  Senate 
Committee  on  Indian  Affairs  for  holding  this  important  hearing  today,  and  I  would  also  like  to 
deliver  a  special  "thank  you"  to  our  North  Dakota  delegation,  Senator  Dorgan  and  Senator 
Conrad,  for  your  unflagging  support  of  our  tribes  in  this  critically  important  issue. 

Chairman  McCain  and  Members  of  the  Committee,  if  ever  there  were  a  time  to  speak  plainly, 
that  time  is  now.  We  therefore  wish  to  state  that  we  have  encountered  serious  problems  in  our 
efforts  to  make  the  Native  American  Graves  Protection  and  Repatriation  Act  do  what  Congress 
intended  it  to  do:  bring  home  our  relatives,  their  personal  burial  belongings,  and  our  items  of 
sacred  and  cultural  patrimony.  We  are  not  satisfied  with  the  limited  level  of  input  and 
representation  given  to  tribes  throughout  the  regulatory  process.  For  nearly  two  years,  our 
Committee  has  met  with  other  tribes  across  the  nation  and  we  have  discussed  with  them  many  of 
the  serious  problems  we  bring  to  your  attention  today.  Through  our  Intertribal  Committee,  our 
tribes  have  been  extremely  vocal  in  our  opposition  to  the  restricted  access  to  the  proposed  final 
regulations,  and  today  we  ask  you  a  simple  question:  Why?  Why  are  we  not  allowed  the  basic 
right  to  see  for  ourselves  what  has  been  incorporated  in  proposed  regulations  which  once  were 
only  15  pages  long,  but  are  now  over  140  pages?  What  is  there  to  hide,  if  indeed  something  is 
being  hidden  from  us?  It  may  be  that  there  will  be  no  substantial  problems  with  the  proposed 
final  regulations,  and  that  will  be  a  fine  thing.  But  we  can  find  no  justifiable  reason  for  the 


200 


arbitrary,  administrative  decision  to  keep  these  regulations  from  the  eyes  of  the  very  people  the 
law  was  passed  to  protect.  Indeed,  had  we  been  allowed  to  review  the  proposed  final  regulations 
1 8  months  ago  when  we  made  our  first  request  to  Secretary  Babbitt,  we  would  have  final 
regulations  before  us  today. 

Serious  problems  exist  within  the  process  of  promulgating  regulations,  beginning  with  the  failure 
to  seat  the  members  of  the  NAGPRA  Review  Committee  in  time  to  meet  the  statutory  deadline. 
Before  this  mandate  was  met,  moreover,  three  drafts  of  regulatory  language  were  compiled  by  an 
Interagency  Working  Group,  consisting  only  of  federal  employees,  with  no  input  from  Native 
people  or  tribal  officials.  When  appointments  were  finally  made,  the  new  members  of  the 
NAGPRA  Review  Committee  began  doing  their  job  of  promulgating  regulations  with  the  third 
draft  of  regulatory  language.  It  is  easy  to  see  how  the  "tone"  of  the  draft  regulations  was  already 
set  before  Native  people  had  any  involvement  in  the  process. 

NAGPRA,  if  nothing  else,  is  a  series  of  compromises  between  Native  nations  and  the  science 
and  museum  industries,  but  it  was  also  created  as  a  mechanism  to  initiate  sorely-needed  dialogue 
between  Indian  Country  and  these  industries.  If  our  participation  in  the  dialogue  is  limited  to 
living  with  final  regulations  which  have  been  primarily  shaped  by  federally-employed  members 
of  these  communities,  then  nothing  will  have  changed,  and  NAGPRA's  original  intent  of 
creating  bridges  will  have  failed.  Also,  Dr.  McManamon  of  the  Park  Service  has  told  us  that  all 
of  our  concerns  have  been  "resolved"  in  the  Preamble  of  the  proposed  final  regulations,  yet  we 
know  that  seldom  is  the  Preamble  consulted  when  interpreting  the  law,  moreover,  the  Preamble 
is  nsii  a  legal  document,  and  would  be  of  no  use  to  us  in  a  litigati  ve  situation.  Of  ftin<lam6Ptal 


201 


importance  to  us  is  the  need  to  determine  whether  or  not  the  proposed  final  regulations  reflect  the 
letter,  the  intent  and  the  spirit  of  the  law.  Senators,  what  we  are  asking  for  is  not  unreasonable, 
and  we  feel  certain  that  if  it  were  Native  people  who  were  passing  laws  and  writing  regulatory 
language  so  that  you  could  repatriate  your  relatives'  bodies  and  sacred  things  from  us  and  our 
museums,  you  would  feel  the  same  way. 

Members  of  the  Committee,  we  are  compelled  to  refer  to  a  directive  given  by  President  William 
Clinton  over  two  years  ago.  In  his  Executive  Proclamation  on  Indian  Affairs  President  Clinton 
stated,  "The  United  States  is  bound  by  a  special  trust  relationship,  requiring  the  Congress,  the 
President,  and  all  entities  of  the  federal  government  to  assure  that  'the  good  faith  shall  always  be 
observed  towards  the  Indians',  as  provided  in  the  Northwest  Ordinance  of  1781  .  .  legal 
documents  shall  be  interpreted  liberally  in  favor  of  the  tribes  and  as  the  tribes  would  have 
understood  them."  In  our  view,  limits  placed  upon  tribal  participation  in  development  of 
regulatory  language  for  this  precedental  law,  such  as  the  Park  Service's  refusal  to  allow  tribes 
another  review  and  comment  period  with  the  proposed  final  regulations,  ignores  such  "good 
faith"  mandates  and  makes  a  mockery  of  present  and  future  efforts  to  normalize  tribal 
relationships  with  federal  agencies,  museums  and  the  science  community. 

One  of  the  most  serious  issues  we  raise  today  relates  to  language  that  was  added  to  the  statutory 
definition  of  tribal  lands,  and  which  was  also  extended  to  human  remains  and  associated  funerary 
objects.  The  statute  is  very  clear  in  its  definition  of  tribal  lands,  when  it  states  that  "tribal  land" 
means  (a)  all  lands  within  the  exterior  boundaries  of  an  Indian  reservation,  and  (b)  all  dependent 
Indian  communities.  The  Act  does  not  raise  the  issue  of  a  5th  Amendment  Taking  in  the  context 


202 


of  tribal  lands,  human  remains  or  associated  funerary  objects,  yet  an  interpretation  has  been  made 
which  does  not  comply  with  the  law  or  the  President's  directive,  and  we  repeat:  "(Lkgal 
documents  shall  be  interpreted  liberally  in  favor  of  the  tribes  and  as  the  tribes  would  have 
understood  them."  In  the  Act,  5th  Amendment  language  appears  only  in  the  definition  of  "right 
of  possession",  referring  only  to  unassociated  funerary  objects,  sacred  objects,  and  objects  of 
cultural  patrimony.  There  is  no  justification  for  extending  a  5th  Amendment  Taking  to  human 
remains,  associated  funerary  objects  and  tribal  lands,  which,  we  understand  from  Dr. 
McManamon,  occurs  in  the  proposed  final  regulations.  Attorneys  Jack  Trope  and  Walter  Echo- 
Hawk,  two  authors  of  the  Act,  were  concerned  about  this  development  as  well,  and  submitted 
testimony  which  we  quote  here:  "The  control  and  possession  definitions  (Sec.  10.2  (e)(5)  and  (6) 
are  simply  inappropriate.  To  link  possession  with  a  cognizable  legal  interest  of  the  sort  described 
could  create  a  rather  large  loophole  by  which  significant  numbers  of  items  possessed  and 
displayed  by  museums  on  a  long-term  basis  could  not  be  said  to  be  'possessed'  by  them  within 
the  meaning  of  the  term  in  the  regulations.  The  definitions  essentially  change  the  statutory 
standard  from  'possess  or  control'  to  'have  a  legal  interest  in'.  It  is  questionable  under  the 
common  law  whether  museums  (or  private  landowners)  'have  a  legal  interest  in'  human  remains 
sufficient  to  do  anything  with  them.  The  terms  'possession  and  control'  should  be  given  their 
ordinary  and  customary  meaning  in  the  regulations.  The  takings  exception  recognized  in  25 
U.S.C.  3001  (13)  is  the  protective  device  for  insuring  that  the  temporary  possession  of  the  items 
bv  museums  does  not  result  in  an  illegal  transfer.  The  'possession',  and  to  a  lesser  extent, 
'control'  definitions  cannot  be  used  to  achieve  this  purpose  and  would  contravene  the  statutory 
scheme." 


203 


Senators,  in  light  of  this  reinterpretation  of  the  Act,  we  refer  you  once  again  to  the  President's 
Proclamation,  and  we  quote, 

"The  United  States  shall  forever  respect  and  protect  the  inherent  sovereign  authority  that  the 
American  Indian  and  Alaska  Native  tribal  governments  have  exercised  since  time  immemorial." 

"The  United  States  shall  forever  continue  to  respect  and  protect  the  government-to- 
government  relationship  with  American  Indians  and  Alaskan  Native  tribes,  a  relationship 
principle  that  historically  has  been  a  cornerstone  of  this  Nation's  official  Indian  policy." 

And  Senators,  with  respect  to  the  reinterpretation  of  the  Act's  definition  of  tribal  lands,  we  ask 
that  you  pay  special  attention  to  the  last  sentence  in  this  quote: 

"The  United  States  shall  support  and  assist  American  Indian  and  Alaska  Native  tribes  in 
exercising  broad  sovereign  tribal  authority  over  all  places,  persons,  property,  and  even  within 
their  territorial  jurisdiction,  and  shall  preserve  and  protect  the  taxation  authority  of  tribes." 

If  a  5th  Amendment  Taking  is  extended  to  the  definition  of  tribal  lands,  it  will  effectively  deny 
tribes  their  right  to  exercise  "broad  sovereign  tribal  authority"  over  lands  within  their  exterior 
boundaries  that  cradle  the  unmarked  burials  and  burial  mounds  of  our  ancestors.  If  this  is 
allowed  to  go  final,  we  will  once  again  be  forced  to  stand  helplessly  by  when  someone  wants  to 
take  something  from  us,  but  this  time  we  will  not  be  watching  our  lands  or  resources  disappear, 
we  will  be  watching  our  loved  ones,  our  ancestors,  and  their  self-evident  human  right  to  rest  in 


204 

peace,  disappear  from  our  own  homelands. 

Gentlemen  of  the  Committee,  time  prevents  us  from  discussing  in  detail  the  many  other  problems 
and  concerns  we  find  with  the  proposed  regulations  and  the  method  in  which  they  have  been 
drafted,  however,  we  provide  here  a  partial  list  of  the  other  issues,  and  will  submit  more  detailed 
written  testimony  regarding  these  problems  in  the  next  few  days.  We  respectfully  ask  your 
attention  in  the  following  matters: 

•  The  definition  of  "Indian  tribes"  is  problematic  since  it  will  exclude  those  indigenous 
nations  which  are  npt  federally  recognized  but  still  maintain  a  responsibility  toward  their 
ancestors  and  their  items  of  sacred  and  cultural  patrimony. 

•  While  tribes  are  being  required  to  divulge  sacred  and  thus  secret  information  regarding 
their  items  of  sacred  and  cultural  patrimony,  federal  agencies  and  museums  are  not 
required  to  protect  the  confidentiality  of  this  information. 

•  Museums  are  determining  what  is  "sacred".  We  submit  that  the  museum  and  science 
industries  have  no  expertise  or  even  the  necessary  knowledge  to  make  this  determination, 
which  can  only  correctly  be  made  by  tribal  spiritual  leaders. 

•  Federal  agencies  involved  in  the  1 940's  Missouri  River  Basin  Survey  archeological 
project  have  "given"  remains  and  burial  belongings  which  were  excavated  from  federal 
lands  to  the  Smithsonian  Institution  in  what  we  fear  is  an  attempt  to  prevent  their 
repatriation  before  extensive  study  has  been  conducted  on  them,  since  NAGPRA  clearly 
states  that  "the  Act  shall  not  be  construed  to  be  an  authorization  for  the  initiation  of  new 
scientific  studies..."  We  have  recendy  learned  where,  through  a  Memorandum  of 


205 


Understanding,  the  Bureau  of  Reclamation  "gave"  remains  excavated  from  their  lands  to 
the  Smithsonian  Institution,  and  did  not  comply  with  NAGPRA's  mandate  to  complete  an 
inventory  of  these  human  remains  and  funerary  objects. 
Assistant  Secretary  Ada  Deer  refused  to  sign  off  on  a  majority  of  the  proposed 
regulations  until  another  publication  and  comment  period  are  held.  She  did,  however, 
sign  off  on  those  sections  of  the  regulations  needed  to  implement  the  summaries  and 
inventories  sections,  which  then  trigger  the  Civil  Penalties  section.  This  "piecemeal" 
attempt  at  finalizing  regulations  did  not  include  the  Civil  Penalties  section,  which  from 
reading  the  previous  complaint,  is  sorely  needed.  Why  is  this?  Also,  the  National  Park 
Service  is  required  to  fulfill  NAGPRA's  mandates,  so  why  have  they  been  made  the 
regulatory  authority  for  compliance?  Who  will  regulate  this  agency  if  they  are  out  of 
compliance? 

Another  section  of  proposed  regulations  which  would  have  been  triggered  under  the 
summaries  and  inventories  section  mysteriously  disappeared  after  our  tribes  objected  to 
language  which  we  felt  failed  to  protect  our  rights.  This  was  an  entire  section  which 
allowed  tribes  and  federal  agencies  to  determine  together  the  treatment  of  unmarked 
burials  found  on  federal  lands.  Agreements  of  this  nature  are  significant  empowerment 
tools  for  tribes  and  they  should  be  encouraged,  not  repressed. 
Please  investigate  whether  certain  museums  like  the  Chicago  Field  Museum  still 
maintain  internal  polices  which  will  prevent  the  repatriation  of  human  remains  of  great 
antiquity. 

Statutory  language  is  silent  regarding  the  repatriation  of  human  remains  incorporated  into 
other  items.  However,  once  again,  the  law  has  not  been  interpreted  liberally  in  favor  of 


206 


tribes  because  the  regulations  prevent  the  repatriation  of  human  remains  incorporated  into 
other  items,  such  as  scalps  on  war  shirts. 
•  Various  meetings  of  the  NAGPRA  Review  Committe  have  raised  the  issue  of  scientific 

study  of  human  remains  to  new  and  more  frightening  levels.  For  example.  Dr.  Phillip 
Walker  of  the  Review  Committee  and  Dr.  Douglas  Owsley  of  the  Smithsonian  Institution 
have  held  protracted  discussions  calling  for  DNA  analysis  of  Native  remains,  and  other 
tests  that  result  in  destruction  of  the  remains  themselves. 

Chairman  McCain  and  members  of  the  Committee,  we  close  with  a  proposal  for  a  solution  to  the 
problems  we  have  raised  with  you  today.  After  nearly  two  years  of  discussions  with  other  tribes, 
and  careful  consideration  of  the  problems,  we  conclude  that  a  very  simple  resolution  is  at  our 
fingertips.  We  propose  that  this  Committee  direct  the  NAGPRA  Review  Committee  to  consult 
with  regional  coalitions  of  tribal  NAGPRA  representatives  to  re-work  the  proposed  regulations, 
send  a  copy  of  their  final  draft  to  all  tribal  governments  for  their  review  and  comment,  thus 
providing  balance  to  a  legal  document  that  will  finally  represent  the  interests  of  our  indigenous 
nations.  These  regional  coalitions  can  be  helpful  in  resolving  other  innate  problems  with  the  Act, 
such  as  reaching  consensus  on  the  treatment  and  disposition  of  culturali}  unidentifiable  human 
remains. 

Honored  members  of  the  Committee,  we  have  today  witnessed  another  step  toward  improving 
the  government-to-govemment  relations  between  our  Nations  and  the  United  States.  By  holding 
today's  hearing,  you  have  given  us  something  we  have  struggled  for  for  nearly  two  years:  today 
we  have  been  heard.  We  respectfully  request  your  immediate  attention  and  action  on  the  critical 
matters  we  have  raised  today,  and  we  are  looking  forward  to  your  response.  We  thank  you  for 


207 


what  you  have  done  to  make  this  historic  and  precedental  law  do  what  it  was  intended  to  do: 
open  the  door  to  the  Spirit  World,  one  final  time,  for  our  loved  ones,  and  begin  the  healing 
process  by  returning  the  sacred  things  we  need  to  revitalize  our  Nations. 


208 

Comments  To  the  Senate  Committee 
on  Indian  Affairs 

Regarding  :  Supplemental  Questions  to 

Oversight  Hearing  on  PX.  101-601 


Submitted  By  :  Jesse  Taken  Alive,  Chairman 
Standing  Rock  Sioux  Tribe 


To  :  Senator  John  McCain ,  Chairman 
Senate  Committee  on  Indian  Affairs 
Room  S38 ,  Senate  Hart  Office  Building 
Washington ,  D.C.  20510 


209 


W.lhur  rVxl  Tomahawk 


January  25,  1996 


Link-  Eagle  Pi> 
1  ...  II  -  Harrison 


AT  LAROE 
Charles  W    Murphy 
Joe  Kevpseaeje 
Have  Archamhaulr 
Terry  Yellow  Far 
Re-ea  <  '.am 
Sharon  Two  Bears 


Senator  John  McCain,  Chairman 
Senate  Committee  on  Indian  Affairs 
Room  838,  Senate  Hart  Office  Building 
Washington,  DC  20510 

Honorable  Senator  McCain: 

We  hope  this  letter  finds  you  in  good  health  and  spirits  and  enjoying  life. 
On  behalf  of  all  North  Dakota  tribes,  we  want  to  thank  you  for  your  letter 
of  December  15,  1995,  in  which  you  invited  us  to  respond  to  several 
questions  regarding  issues  that  were  raised  at  the  Oversight  Hearing  your 
Committee  held  on  December  6,  1995.  We  are  very  thankful  to  you  for 
presenting  us  with  these  questions,  Senator  McCain,  and  for  making  our 
response  a  part  of  the  public  record  of  the  Oversight  Hearing. 

We  wish  to  express  our  sincere  gratitude  for  this  long-awaited  opportunity 
to  express  ourselves  and  to  be  heard.  Out  tribes'  NAGPRA 
representatives  have  provided  much  of  the  responses  submitted  herein 
Senator,  they  can  speak  with  the  voice  of  experience,  based  upon  ten  long 
years  of  working  in  the  reburial  and  repatriation  issue,  responding  to  one 


P.  O.  BOX  D  •  FORT  YATES,  NORTH  DAKOTA  58538  PHONE:  701-854-7201  or  701-854-7202  •  FAX  701-854-7299 


170 


210 


obstacle  after  another,  as  you  will  soon  see  for  yourself.  Through  the 
members  of  the  North  Dakota  Intertribal  Reinterment  Committee  our 
tribes  tried  to  sound  a  warning  years  ago  about  many  of  the  issues  you 
raised,  particularly  those  dealing  with  new  ruling  from  Hawaii,  in  an 
attempt  to  prevent  the  predicament  we  are  in  today.  You  can  imagine  our 
relief  and  gratitude  that  you  heard  us,  Senator  McCain,  and  gave  us  this 
once-in-a-lifetime  opportunity  to  share  our  concerns,  problems  and 
proposed  resolutions  with  you  and  the  rest  of  the  Senate  Committee  on 
Indian  Affairs.  Thank  you  for  listening  and  responding  so  quickly  and 
decisively. 

In  addition  to  providing  complete  responses  to  all  the  questions,  we  are 
submitting  our  summary  of  the  Hawaii  ruling,  and  our  opinion  as  to  its 
overall  soundness  and  potential  impact  upon  all  Native  peoples.  We  are 
grateful  to  Senator  Inouye  for  brining  this  to  our  attention  -  there  are  grave 
matter  therein  that  all  Native  peoples  need  to  consider  and  prepare  for. 
We  have  included  several  documents  to  provide  justification  and 
documentation  for  many  of  the  issues  we  shared  with  you  in  our  response. 
If  you  have  any  questions,  or  wish  further  information,  please  do  not 
hesitate  to  contact  me. 

Sincerely, 


Jesse  Taken  Alive 
Standing  Rock  Sioux  Tribe 

enclosures 


211 

Comments  to  :  Na  Iwi  0  Na  Kupuna  0  Mokapu,  Heleloa,  Ulupa'u  A  Me  Kuwa'a'ohe 

Vs.  John  Dalton  -    Civil  No.  94-00445  DAE  -  Filed  July  25, 1995 

This  court  case  raises  a  series  of  concerns  mostly  generated  by  the  Public  Law  101-601 
itself  Certain  policies  were  clearly  not  established  in  the  policy  making  process  and 
presumably  would  be  addressed  in  the  regulatory  process.  In  defense  of  the  law,  it  was  to 
be  all  inclusive  with  Native  Americans  and  Native  Hawaiians,  which  may  be  understood 
that  any  federal  action  brought  against  any  federal  agency,  museum,  or  institution  that  is 
mandated  to  comply  with  the  law  would  have  a  superficial  effect  on  all  inclusive  of  the 
Act. 

In  defense  of  the  Native  Americans  and  Native  Hawaiians,  one  needs  to  understand  the 
cultural  diversity  of  the  two  groups  mentioned  in  the  Act  and  are  mandated  to  follow 
procedural  guidelines  to  make  a  request  of  any  kind  under  the  Act  Although  the  law  groups 
these  individuals  together,  it  is  understandable  that  the  law  makers  did  know  the  diversity 
in  both  cultures  and  may  have  understood  that  to  some  degree  that  the  precedence  set  in  any 
adjudication  may  negatively  effect  the  remainder.  Tribes  to  some  degree  may  not  have  the 
resources  to  litigate  a  issue  against  a  federal  agency  or  museum,  thus  would  take  a  back 
seat  approach  to  their  issue  and  would  have  to  wait  or  live  with  a  decision  detrimental  to 
their  concern. 

Issues  and  concerns : 

1).  The  Federal  Defendant  awarded  a  contract  to  the  Bishop  Museum  to  prepare  a 
inventory  of  the  human  remains  disinterred  from  the  Mokapu  Peninsula  in  compliance  with 
section  3003  ofNAGPRA : 

This  process  needs  to  be  recommended  to  the  National  Review  Committee  for 
review  on  the  basis  of  whether  a  federal  agency  has  the  authority  to  relinquish  his  holding 
to  any  other  entity  to  comply  with  the  mandate  of  NAGPRA.  The  law  addresses  the 
definition  of  museum  as  meaning  "  any  institution  or  State  or  local  government  agency  ( 
including  any  institution  of  higher  learning)  that  receives  Federal  funds  and  has  possession 
of,  or  control  over,  Native  American  cultural  items.  Such  term  does  not  include  the 
Smithsonian  Institution  or  any  other  Federal  agency  ".  Federal  agency  "  means  any 
department,  agency,  or  instrumentality  of  the  United  States.  Such  term  does  not  include  the 
Smithsonian  Institution ".  One  can  see  that  the 

statutory  law  never  allowed  the  relinquishment  of  a  holdings  under  the  authority  of  a  given 
Federal  agency,  museum  or  institution.  Also,  the  National  Review  Committee  should  also 
consult  with  the  Native  American  and  Hawaiians  to  establish  a  curatorial  program 
universal  to  all  museums,  institutions,  and  Federal  agencies,  since  this  was  a  question  in 
the  court  case.  Finally,  the  word  study,  including  the  terms  methods,  examination  , 
techniques,  or  additional  research,  needs  to  be  clarified  by  Congress  since  these  terms  are 
referenced  continuously  ( in  ex. "  standard  physical  anthropology  techniques ",  page  3  of 
court  case  ).  The  Native  Americans  and  Native  Hawaiians  need  to  understand  what  is 
being  performed  on  the  human  remains. 


212 

Page  2 


2).  Human  Remains  are  deemed  Cultural  items  : 

This  issue  is  addressed  in  25  USC  3001  (section  2.  definitions  (3).).  Congress 
needs  to  amend  the  law  to  clarify  this  portion  of  statutory  law.  We  recommend  deleting  the 
wording  of  human  remains  from  this  section  "cultural  items".  This  in  itself  will  clear  up 
aJot  of  future  descrepancies  that  would  be  a  major  focal  point  in  any  litigation.  If  this 
option  is  not  open  to  the  Tribes  or  Native  Hawaiians,  then  Congress  needs  to  clarify  this 
standing  issue. 

3).  Standing: 

In  reference  to  the  Presidential  Executive  Proclamation  which  states  "  The 
United  States  is  bound  by  a  special  trust  relationship,  requiring  the  Congress,  the  President, 
and  all  entities  of  the  Federal  government  to  assure  that '  the  good  faith  shall  always  be 
observed  towards  the  Indians',  as  provided  in  the  NorthWest  Ordinance  of  1781  ...  legal 
documents  shall  be  interpreted  liberally  in  favor  of  the  tribes  and  as  the  tribes  would  have 
understood  them.",  the  tribes  and  the  Native  Hawaiians  need  to  remind  Congress  of  this 
proclamation  in  reference  to  the  issue  and  status  of  human  remains.  Currently  under  this 
decision,  the  issue  of  whether  human  remains  have  standing  in  a  court  of  law  has  been 
decided  and  ruled  that  they  don't.  Requirements  may  be  needed  to  protect  the  issue  of 
standing  if  the  court  relied  only  on  the  common  law  requirements,  which  was  not  created 
for  the  requirements  of  NAGPRA.  The  question  of  guardianship  to  human  remains  has 
always  been  an  important  part  of  any  given  culture,  whether  it  has  been  addressed  in 
federal  ,  state,  or  tribal  law.  The  Congress  needs  to  clarify  this  important  aspect  of  the 
court  case,  knowing  that  this  issue  will  surface  in  all  litigation  dealing  with  the  human 
remains  issue.  Congress  needs  to  provide  a  expressed  provision  granting  standing  and 
guardianship  to  regional  coalitions,  tribal  groups  and  Native  American  ,  Hawaiian, 
individual(s)  to  satisfy  the  requirements  ofNAGPRA,  including  consultation. 

4).  Additional  Scientific  Research : 

Although  NAGPRA  does  not  allow  for  or  authorize  any  additional  scientific 
study  in  25  USC  (section  5  (b)  (2) ),  it  also  contradicts  it  to  the  effect  mat  in  the  absent  of 
documentation,  it  allows  study  to  determine  cultural  affiliation,  origin.  Congress  needs  to 
impose  limited  study  or  research  restrictions  to  safeguard  this  very  sensitive  portion  of  the 
law.In  light  of  the  issues  raised  in  this  court  case,  which  was  prior  to  any  direction  given  in 
the  form  of  regulations,  we  recommend  that  Congress  needs  to  review  all  issues  we  raise 
in  mis  letter  of  response.  Congress  does  have  a  trust  responsibility  to  all  the  Native 
Americans  and  Native  Hawaiirns  to  protect  our  vested  interest  and  protect  the  spirit  and 
intent  ofNAGPRA.  All  issues  raised  in  the  Hawaiian  court  case,  if  not  addressed,  will 
dismantle  the  very  efforts  of  all  who  had  contributed  to  the  enactment  of  this  very  important 
Act 


213 


Page  3 

5).  Trust  Responsibility : 

The  court  ruled  on  the  trust  responsibility,  citing  Doski  v.  Goldseker  Co. 
(4th  Cir.  1976 )  and  United  States  v.  Deluxe  Cleaners  and  Laundry,  Inc.  (4th  Cir.  1975  ). " 
This  court  has  previously  found  that  the  federal  government  has  no  trust  responsibility  to 
Native  Hawaiians  where  the  relevant  statutory  language  does  not  explicitly  indicate  a  trust 
duty."  The  court  also  views  25  USC  ( section  12 )  as  a  disclaimer  clause. 

We  would  recommend  that  Congress  fulfill  its  directive  in  the  Presidents 
Executive  Proclamation,  and  direct  the  Federal  agencies,  museums  who  received  any 
federal  funding ,  that 

they  will  carry  out  the  mandates  of  NAGPRA  and  they  do  have  a  trust  duty  to  the  Native 
Americans  and  the  Native  Hawaiians.     • 

6).  The  Inventory  is  subject  to  FOIA : 

The  court  determined  that  the  inventory  information  is  subject  to  FOIA 
because  it  does  not  meet  any  of  the  nine  exemptions.  The  Federal  government  is  well 
aware  of  the  sensitivity  within  this  issue  with  tribes.  Not  only  are  the  tribes  constantly 
fighting  to  protect  their  sovereignty,  land  base,  language,  culture,  religion  and  human 
remains,  they  now  have  to  protect  various  information  critical  to  our  very  existence.  Does 
the  disclosure  violate  the  rights  of  tribal  members,  tribes  in  certain  confidentiality  or 
privileged  information  on  religious  practices,  and  our  spirituality  when  certain  individuals 
or  interest  groups  would  exploit  our  ways  for  monetary  advancement,  if  it  is  mandated  to 
be  published  in  the  Federal  Register  ?  Congress  must  amend  the  law  to  have  this  included 
as  a  withholding  statue  and  if  not,  at  a  minimum,  restrict  information  to  be  published  in  the 
Federal  Register,  limited  only  to  notification  of  a  repatriation  request,  stating  the  area  if 
known  of  acquisition,  number  of  items,  and  list  potential  tribes. 

Congress  needs  to  also  define  inventory,  scientific  studies,  and  scientific 
information  in  order  to  explicitly  imply  what  is  restricted  and  what  is  not,  if  Congress  does 
not  make  NAGPRA  a  withholding  statue.  One  question  needs  to  be  asked  by  Congress  and 
the  tribes  is  how  did  the  scientific  community  or  museums  arrive  at  the  $500.00  to  $600.00 
dollar  figure  needed  per  human  remain  to  establish  origin.  The  type  of  study  needed  to 
determine  tribal  affiliation,  and  what  is  the  dollar  amount  to  determine  this?  Also,  what  is 
the  process  to  document  or  confirm  ethnicity  from  a  physical  anthropological  point  of 
view,as  cited  in  the  court  case  on  page  35  ? 


214 


Page  4 

The  Hawaii  court  ruling  needs  to  be  fully  reviewed  by  the  committee  or  the  Solicitors 
office  to  review  the  impact  it  has  on  NAGPRA.  We  recommend  this  and  also  to  consult 
with  the  tribes  in  the  Nation  on  the  approach  they  will  be  taking  It  is  obvious  that  the  ruling 
may  have  a  effect  on  the  final  regulations  currently  being  implemented. 

One  point  that  stands  out  and  is  one  of  the  major  factor  in  the  case  is  compliance.  The 
defendants  position  in  his  capacity  was  that  absent  of  no  direction  in  the  form  of 
regulations,  the  issue  of  study  was  left  up  to  interpretation  and  the  court  looked  in  that 
direction,  also  in  the  house  reports,  the  testimony  on  the  bill  during  testimony,  and 
documentation  on  the  history  of  the  law  during  formation.  This  raises  a  serious  question  to 
compliance  to  the  law,  how  this  ruling  plays  with  the  interpretation  of  the  regulations,  and 
how  compliance  will  be  approached.  Currently,  we  understand  different  Federal  agencies 
and  museums  are  approaching  the  law  on  how  additional  information  or  study  is  needed  for 
compliance.  The  second  serious  concern  and  may  be  the  most  frightening,  is  if  the  Federal 
agency  or  museums  can  turn  over  their  collections  to  another  entity  for  inventory  and 
compliance  to  the  mandate  of  NAGPRA.  We  understand  this  is  unallowable  but  now  may 
take  this  avenue  because  of  this  ruling.  We  recommend  that  the  Senate  Committee  on  Indian 
Affairs,  and  the  Congress  correct  this  situation  and  restore  language  that  is  very  clear  to 
Federal  agencies  and  museums  that  they  have  a  clear  responsibility  to  the  mandates  of 
NAGPRA.  We  also  may  point  out  that  we  are  aware  of  Federal  agencies  ( particularity  the 
National  Park  Service,  The  Army  Corps  Of  Engineers,  Bureau  of  Reclamation,  to  name 
a  few  )  who  are  contracting  this  responsibility  out  already,  or  making  Memorandum  of 
Understandings  with  the  Smithsonian  Institute  or  others,  on  completing  their  responsibility 
to  the  mandate  of  NAGPRA.  If  the  National  Park  Service  is  delegated  the  responsibility 
from  the  Secretary  of  the  Interior  to  oversee  compliance  to  the  law  and  want  to  be  the 
regulators,  we  ask  again  ,  who  is  going  to  regulate  the  National  Park  Service  on 
compliance  to  the  law,  Congress  ?  We  request  that  the  Senate  Committe  on  Indian  Affairs 
investigate  this  question  personally,  and  ask  the  Review  Committee  and  the  National  Park 
Service,  are  any  of  the  Federal  agencies  in  compliance  ,is  this  happening  ?  The  Standing 
Rock  Sioux  Tribe  would  like  a  response  to  these  specific  questions  and  suggest  you  follow 
up  with  the  three  Federal  agencies  we  mention  to  see  if  their  is  merit  to  this  issue  we  raise. 
Only  then  will  you  understand  that  these  and  numerous  issues  we  have  raised  at  nearly  all 
the  National  Review  Committee  meetings  during  public  testimony,  but  have  gone 
unnoticed.  Please  intervene  on  behalf  of  us. 

We  would  also  recommend  that  if  legislation  is  proposed  to  the  Congress  and  testimony 
is  anticipated,  that  a  member  of  the  North  Dakota  Intertribal  Reinternment  Committee  be 
afforded  such  time  to  present  testimony.  If  tribal  leadership  is  requested,  that  a  member  of 
the  Dakota  Territory  Chairmans  Council  be  afforded  such  time  to  testify. 

We  would  like  to  thank  the  committee  for  requesting  a  response  to  the  Hawaii  decision . 
Should  any  additional  information  is  needed,  please  feel  free  to  contact  myself,  Jesse 
Taken  Alive,  Chairmen  of  the  Standing  Rock  Sioux  Tribe,  701-852-7201 .  Thank  You . 


215 


QUESTION  1,  Page  1,  McCain  Letter:  Is  it  possible  to  create  tribal/museum  agreements 
to  protect  confidentiality? 

When  our  tribes  first  reviewed  the  proposed  regulations  in  May  of  1993,  we  reacted 
strongly  to  language  which  (a)  accepted  as  fact  museums'  questionable  ability  to  determine 
tribal  affiliation  of  our  remains  (b)  museums'  ability  to  determine  what  is  sacred  to  us  and 
(c)  never  addressed  whether  or  not  sacred  information  would  be  protected  or  restricted. 
Our  tribes  submitted  written  testimony  to  the  National  Park  Service  in  1993  objecting  to 
regulatory  language  giving  museums  and  federal  agencies  the  ability  to  determine  what, 
among  their  collections,  is  sacred,  as  well  as  the  tribal  affiliation  of  human  remains  in  their 
possession   We  forsaw  many  inherent  problems  in  this  proposal,  including  the  issue  of 
confidentiality    We  were  aware  that  the  NPS  planned  to  publish  detailed  listings  of 
repatriated  human  remains  and  other  items  of  sacred  and  cultural  patrimony,  and  instead 
advised  them  to  publish  general  statements  in  tribal  newspapers  or  other  media  located  on 
or  near  affected  reservations,  or  to  have  letters  sent  directly  to  other  tribes  who  may  have 
an  interest  in  the  materials   We  advised  this  action  because  we  were  concerned  about  the 
safety  of  the  remains  and  burial  belongings  once  the  public  discovered  where  they  had 
gone   But  the  Park  Service  was  adamant  and  the  language  stayed  in  the  regulations. 

The  fact  that  determinations  of  "sacredness"  have  now  been  left  to  our  biggest  opponents 
in  the  issue  has  created  the  present  situation  where  tribes  are  also  required  to  divulge 
sacred  (and  very  often  secret)  information  in  order  to  identify  sacred  objects  and  prove 
our  current  or  continuing  use  of  these  objects.  The  law's  current  inability  to  restrict  access 
to  this  sensitive  information  by  any  person  is  truly  the  icing  on  the  cake  -  the  real  problem 
is  that  we  tribes,  who  alone  could  be  said  to  have  "expertise"  regarding  our  sacred  things, 
have  been  totally  circumvented  in  a  critical  decision-making  area,  and  the  power  to  control 
what  is  repatriated  has  been  handed  over  to  our  most  active  opponents,  probably  all  of 
whom  come  from  a  totally  foreign  culture  which  has  no  true  knowledge  of  our  sacred  life. 

Unless  all  museums  and  federal  agencies  have  to  restrict  access  to  sacred  information 
or  knowledge  by  any  person  for  any  reason,  we  do  not  see  the  feasibility  of  future 
agreements  on  the  matter.  We  believe  this  restriction  will  have  to  apply  to  all  records 
dealing  with  our  ancestors'  remains,  all  items  of  sacred  patrimony,  and  perhaps  to  items  of 
cultural  patrimony  as  well.  We  discuss  below  the  reasons  for  our  position. 

It  may  be  that  some  tribes  will  be  less  sensitive  to  this  issue,  however,  we  can  speak  only 
for  our  tribes  from  the  cultural/spiritual  perspectives  and  responsibilities  that  we  have.  In 
addition,  the  option  of  agreements  is  already  available  to  tribes  under  25  USC,  Section  1 1 
(l)(b)  of  the  Act  in  the  section  entitled  "Savings."  The  question  remains,  however,  as  to 
whether  or  not  museums  and  federal  agencies  will  agree  to  this  type  of  restriction.  If  they 
don't  (or  cant)  agree  to  such  restrictions,  what  will  be  the  tribes'  option  then?  We  believe 
the  only  answer  will  be  to  amend  the  statute  so  that  tribes'  individual  needs  are  met.  We 
believe  that  any  such  amendment  must  give  tribes  the  ability  to  determine  for  ourselves 
what  is  sacred  in  a  given  museum's  or  agency's  collections,  and  also  allow  tribes  to  decide 
for  themselves  whether  or  not  to  share  sacred  knowledge  with  the  public  or  keep  it 


216 


restricted.  Only  then  will  the  process  have  been  made  flexible  enough  to  meet  the 
diversity  in  value  systems  and  beliefs  present  among  Native  peoples  today 

Again,  we  believe  that  not  all  information  must  fall  into  this  restricted  category,  indeed, 
only  two  types  of  information  need  be  restricted:  (1)  information  relative  to  the 
repatriation  and  reburial  of  specific  human  remains  and  funerary  objects  should  be 
restricted  to  anyone  except  appropriate  tribal  NAGPRA  officials  who  may  have  an 
interest,  and  (2)  access  to  all  information  relative  to  the  identification  of  our  tribes'  sacred 
objects  must  be  restricted  to  any  person  for  any  reason 

We  realize  that  cries  of  censorship  will  be  heard  when  the  science  and  academic 
communities  are  faced  with  the  position  we  have  taken,  however  we  also  realize  what  will 
happen  to  information  about  our  sacred  things  if  steps  are  not  taken  now  to  ensure  that  it 
is  kept  confidential:  first,  it  will  be  collected,  catalogued  and  curated  the  way  the  contents 
of  our  ancestors'  graves  have  been  all  these  years,  then,  if  will  be  loaned  to  various 
scholars  and  academicians  as  fodder  for  a  whole  new  round  of  papers,  articles  and  books. 
They  will  be  paid  handsomely  for  their  efforts,  thus  perpetuating  and  ensuring  their  status 
quo.  Our  sacred  knowledge  will  enhance  and  upgrade  their  reputations  and  their  resumes. 
This  will  be  particularly  true  of  those  scientists  and  scholars  who  "specialize"  in  a  certain 
tribe  or  geographic  region    Once  this  information  is  published,  the  "New  Age"  communi- 
ties will  also  exploit  and  sell  our  sacred  knowledge  in  pseudo-ceremonies  along  with 
others  they  are  already  selling  to  unsuspecting,  needy  consumers    And  we  Native  people 
will  forced  to  watch  as,  once  again,  our  sacred  and  spiritual  culture  is  "mined"  by  the 
dominant  society    It  must  also  be  said  that  much  of  this  sacred  knowledge  is 
restricted  to  certain  elders  and  medicine  people  among  our  tribes  -  not  even  all  of 
our  tribal  members  have  access  to  this  information! 

Another  problem  with  determinations  made  by  others  outside  our  culture:    we  have  an 
instance  where  the  North  Dakota  State  Historical  Society  failed  to  (a)  return  to  our  tribes 
three  shell  masks  which  had  been  identified  by  former  staff  at  that  agency  as  burial  objects 
associated  with  human  remains  excavated  from  a  large  burial  grounds  and  released  to  us  in 
a  previous  repatriation  and  (b)  failed  again  to  list  those  burial  objects  in  a  NAGPRA 
inventory  because,  suddenly,  they're  no  longer  considered  by  current  staff  to  be  burial 
objects.  To  us,  anything  found  near,  in  or  on  top  of  a  burial  site  is  holy  because  it  belongs 
to  the  spirits    The  Society,  however,  does  not  want  the  words  "sacred"  or  "holy" 
associated  with  these  masks,  because  they  want  to  keep  them    If  we  hadnt  known  those 
burial  objects  existed,  we  would  not  have  been  informed  of  them  through  the  process 
required  by  NAGPRA,  nor  would  we  now  be  able  to  begin  the  dispute  resolution  process. 
This  is  what  happens  when  museums  and  federal  agencies  are  allowed  to  determine  what 
is  sacred,  what  is  a  funerary  object,  and  what  tribe  remains  are  affiliated  with. 

Because  the  science  and  museum  industries  have  been  given  the  right  to  make  these 
determinations,  and  to  put  things  bluntly,  we  do  not  trust  that  we  have  been  given  a  full 
accounting  of  all  the  collections,  how  are  we  to  fulfill  our  responsibilities  in  bringing  home 
all  of  our  relatives  and  sacred  belongings  available  to  us  under  NAGPRA?  By  trusting 


217 


that  our  biggest  opponents  in  the  repatriation  struggle  will  give  us  all  the  facts  we  need  to 
repatriate  our  sacred  and  cultural  property9  What  about  matters  in  which  they  have  no 
expertise,  such  as  what  is  "sacred"  to  «s9  The  fact  that  there  is  no  test  method  available 
today  which  conclusively  identifies  the  tribal  origin  of  Native  human  remains  also  gives 
rise  to  many  other  questions  and  doubts  about  why  the  museums  were  allowed  to  make 
these  determinations   We  must  be  allowed  to  decide  for  ourselves,  Senator  McCain, 
the  treatment  and  disposition  of  all  human  remains  excavated  from  our  aboriginal 
homelands,  as  well  as  the  treatment  and  disposition  of  human  remains  for  which 
original  location  is  unknown  and  how  much,  if  any,  of  our  sacred  knowledge  will  be 
made  available  to  the  public. 

For  us,  this  is  not  an  issue  that  can  be  resolved  on  a  case-by-case  basis   We  cannot  allow 
any  sacred  information  or  knowledge  about  any  of  our  sacred  objects  to  be  recorded  or 
otherwise  retained  by  museums  or  federal  agencies,  unless  that  information  is  tightly 
sealed    Senator  McCain,  please  try  to  see  things  from  our  viewpoint:  we  lost  our 
homelands,  we  lost  our  rivers,  our  mountains,  our  burial  grounds,  we  are  losing  our 
languages,  our  stories,  our  cultures   We  want  to  say  to  America,  "Please,  please,  just  let 
us  keep  our  religion,  our  spiritual  way  of  life,  to  ourselves!  We  are  almost  losing  that  too!" 
Of  all  the  ethnic  groups  present  in  our  homelands  today,  indigenous  people  in  America 
have  been  singled  out  for  a  level  of  exploitation,  robbery,  appropriation  and  study 
unrivaled  anywhere  else  in  the  world   We  have  withstood,  and  borne,  and  survived  this 
institutional  genocide  for  over  five  hundred  years   We  just  want  it  to  stop   We  just  want 
to  be  left  alone,  to  regain  control  of  our  lives,  our  histories  and  cultures,  and  our  future  as 
Native  peoples.  Is  that  asking  so  much?  We  don't  think  so. 


218 


QUESTION  2,  Page  1,  McCain  Letter:  (A)  Do  you  still  feel  that  regional  tribal  coalitions 
should  be  established'7 

Now  more  than  ever,  regional  tribal  coalitions  are  needed  to  provide  input,  direction  and 
expertise  to  the  NAGPRA  Review  Committee,  the  National  Park  Service,  and  the 
Secretary  of  Interior    Several  critical  sections  of  draft  regulatory  language  dealing  with 
"Reserved"  sections  of  the  law  are  soon  to  be  published  for  public  review  and  comment 
Remember,  these  sections  were  placed  in  "Reserve"  status  by  the  Park  Service,  due  to 
their  controversial  nature    We  submit  that  tribes  must  have  meaningful 
representation  and  input  into  all  discussions  regarding  these  draft  regulations.  Who 
knows  how  many  drafts  have  already  been  written  and  discarded  by  now,  all  without  one 
iota  of  input  from  the  very  people  who  will  be  directly  impacted  by  the  language  therein? 

Moreover,  NAGPRA  Review  Committee  member  Dan  Monroe  told  us  a  few  years  ago 
something  we  already  knew  and  worried  about:  after  inquiring  why  we  were  putting  so 
much  energy  into  opposing  the  current  set  of  draft  regulations  (now  finalized),  he  stated 
that  the  "REAL  battle  is  going  to  boil  down  over  the  unaffiliated  and  unclaimed  human 
remains  "  (Washington,  DC  meeting  of  the  NAGPRA  Review  Committee,  Sept.  '93  )We 
knew  then  and  we  know  now  that  what  he  said  is  true:  for  that  alone  we  Native  peoples 
need  a  direct,  meaningful  role  in  the  development  of  all  future  regulatory  language  if  we 
are  going  to  adequately  respond  to  the  impending  battle  over  our  poor  relatives  who  defy 
Western  scientific  identification  methods    For  over  a  decade  now,  the  North  Dakota  tribes 
have  maintained  the  following  position  on  our  relatives'  remains:  If  they  are  Indian,  if  they 
come  from  our  collective  aboriginal  homelands,  they  and  their  personal  belongings  must 
be  returned  to  us  for  rebural  on  Indian  lands    Anything  less  would  be  an  abrogation  of 
their  self-evident  human  right  to  rest  in  peace,  and  a  negation  of  our  responsibilities  to  our 
ancestors,  a  duty  to  return  them  to  and  protect  their  sacred  resting  places. 

We  have  discussed  this  position  with  tribes  from  Maine  to  Washington  state,  from  Florida 
to  southern  California,  and  many,  many  points  in  between  during  the  last  ten  years   We 
have  met  with  almost  unilateral  agreement  from  scores  of  other  tribal  NAGPRA 
representatives  on  this  issue.  Those  who  did  not  agree  did  so  only  because  their  spiritual 
beliefs  do  not  place  the  same  value  on  human  skeletal  remains,  even  so,  however,  many  of 
these  tribes  expressed  the  desire  to  have  them  removed  from  display  or  curation  in 
museums    Because  many  indigenous  nations  formerly  or  currently  share  aboriginal 
homelands,  and  because  they  also  subsequently  share  similar  spiritual  values  where 
reburial  and  repatriation  are  concerned,  the  proposal  to  direct  Secretary  Babbitt  and  the 
Park  Service  to  work  directly  with  regional  tribal  coalitions  is  not  only  sound  and  practical 
for  the  federal  government,  it  is  the  quickest,  most  economical  and  convenient  way  we  can 
find  to  achieve  consensus  on  NAGPRA-related  issues  in  Indian  country  today 

Moreover,  as  we  said  to  you  before  Senator,  we  maintain  that  the  serious  problems 
inherent  in  the  final  regulations  represent  major  Indian  policy  changes  successfully 
and  craftily  conducted  through  the  regulatory  process.  We  need  direct  and 


219 


meaningful  input  to  prevent  this  from  happening  again  with  the  critical  "Reserved" 
sections! 

Senator  McCain,  you  will  see  in  our  answer  to  Question  #3  that  we  had  serious  doubts 
from  the  beginning  about  the  NAGPRA  Review  Committee's  ability  or  even  willingness  to 
reflect  our  concerns  and  issues  in  the  regulations.  Of  the  three  Native  members  appointed 
to  the  Committee,  one  of  them  did  not  understand  the  language  used  in  the  process 
because  English  is  not  his  first  language,  and  repeatedly  informed  the  rest  of  the  Committe 
of  this  fact    The  other  two  members  both  admitted  that  they  did  not  understand  the 
language  or  the  process  either.  The  remaining  four  members  come  from  the  museum  or 
science  industries.  Our  response  to  that  is  this:  what  were  they  doing  on  such  an 
important  Committee?  Were  our  rights  protected  by  them?  Did  they  speak  up  for  us? 
Did  they  provide  us  with  direct,  meaningful  representation  on  critical  matters,  such 
as  the  reinterpretation  of  Indian  lands?  Such  as  who  decides  what  is  sacred?  Were  the 
Native  members  listened  to  by  Secretary  Babbitt  and  the  Park  Service,  or  simply 
exploited?    Our  own  tribal  NAGPRA  representatives  all  but  three  meetings  of  this 
Committee,  and  only  twice  did  we  see  one  of  these  Native  members  speak  up  in  defense  of 
tribes   These  defenses  came  from  the  man  for  whom  English  is  a  foreign  language.  We 
feel  in  many  instances  that  they  did  and  continue  to  do  their  best  -  but  it  was  not  good 
enough,  it  wasn't  what  was  needed,  obviously,  to  keep  the  final  regulations  from 
gutting  the  law  of  its  protections  to  tribes. 

In  another  instance,  however,  where  the  unaffiliated  and  unclaimed  human  remains  are 
concerned,  one  of  the  Native  Committee  members,  Chairwoman  Tessie  Naranjo,  openly 
and  angrily  disputed  our  tribes'  offer  to  rebury  all  of  these  remains  in  the  event  there  was 
no  one  else  to  care  for  them.  We  feel  she  neglected  her  duty  to  listen  to,  weigh,  and 
represent  ALL  indigenous  nations'  values  in  this  regard,  but  in  response  to  her  reaction 
we  proposed  the  idea  of  creating  regional  tribal  coalitions  who  would  each  determine  by 
consensus  the  treatment  and  disposition  of  all  unaffiliated  human  remains  that  come  from 
their  respective  regions,  based  upon  their  respective  value  systems  and  beliefs.  This  leaves 
the  issue  of  what  to  do  with  those  poor  Old  Ones  who  cannot  be  culturally  affiliated  and 
there  is  no  available  knowledge  about  the  location  of  their  original  burials.  Again,  this 
determination  should  be  left  in  the  hands  of  tribes,  and  it  is  one  which  can  be  made  col- 
lectively by  the  regional  tribal  coalitions.  Our  tribes'  offer  to  rebury  them  on  Indian  lands 
still  stands. 

We  have  been  convinced  of  the  feasibility  of  these  coalitions  for  many  years,  Senator,  and 
have  proposed  these  coalitions  to  the  NAGPRA  Review  Committee  at  its  meetings  at 
Phoenix,  AZ,  Rapid  City,  SD,  Albany,  NY,  and  Los  Angeles,  CA   The  NAGPRA  Review 
Committee  must  agree  with  us  about  these  coalitions,  as  they  suggested  tribal  coalitions 
work  together  to  decide  what  will  happen  with  the  unaffiliated  and  unclaimed  human 
remains  in  their  recommendations  to  Secretary  Babbitt    In  fact,  we  feel  so  strongly  about 
all  the  benefits  of  creating  regional  coaltions  of  tribal  NAGPRA  representatives  that  on 
February  10  and  1 1  we  will  be  hosting  a  conference  to  which  all  of  the  tribes  in  the  United 
States  are  invited,  for  the  express  purpose  of  organizing  these  coaltions,  discussing 


220 


regional  cemetaries  versus  a  large  national  cemetary  for  our  ancestors,  and  creating  unity 
on  all  NAGPRA-related  matters    Given  the  opportunity,  we  can  create  solutions  which 
most  perfectly  suit  our  needs  and,  more  importantly,  the  needs  of  the  Pitiful  Ones  who 
have  languished  in  museum  collections  for  many,  many  years    To  us,  tribal  identification 
means  very  little  in  the  face  of  a  Spirit  Journey  -  all  that  matters  is  that  these  Old  Ones  be 
given  the  dignity  of  peaceful  rest. 

For  all  of  these  reasons,  it  is  of  paramount  importance  that  Secretary  Babbitt,  the 
National  Park  Service  and  the  NAGPRA  Review  Committee  be  required  to  work  directly 
with  regional,  tribal  coalitions  comprised  of  tribal  NAGPRA  representatives.  These 
individuals,  in  our  experience,  have  hard-earned  expertise  and  detailed  knowledge  of  what 
their  tribes  are  going  to  need  to  make  NAGPRA  do  what  Congress  intended  it  to  do: 
bring  home  our  relatives  and  their  personal  burial  belongings,  as  well  as  certain  items  of 
sacred  and  cultural  patrimony    As  you  know  Senator  McCain,  the  NAGPRA,  like  most 
legislation,  is  a  collection  of  compromises  between  tribal  needs  and  the  needs  of  the 
science  and  museum  industries    The  situation  becomes  problematic  when  individual, 
sovereign  tribes  are  prevented  from  negotiating  their  own  compromises,  based  upon  their 
own  needs  and  interests    Most  of  us  did  not  negotiate  the  compromises  contained  in 
NAGPRA,  indeed,  most  of  us  were  unaware  that  compromises  were  being  made  in  our 
behalf  That  is  why  regional,  tribal  NAGPRA  coalitions  are  so  important,  so  critical 
to  the  future:  it  is  the  only  mechanism  we  can  find  which  will  provide  all  tribes  with 
a  voice.    If  we  are  not  allowed  more  direct  participation  in  the  process,  and  if  the  process 
is  not  changed  as  our  tribes  have  asked,  history  will  repeat  itself,  and  once  again  we  will 
watch  helplessly  as  the  law  is  gutted  and  another  dream  of  equal  treatment  and  justice  for 
Native  people  fades  into  obscurity  and  impotence. 


221 


QUESTION  2,  Page  1,  McCain  Letter,  (B):  To  what  extent  were  tribes  in  your  region 
consulted  on  the  development  of  regulations? 

In  our  view,  the  tribes  in  our  region  were  consulted  only  to  the  extent  required  to  meet  the 
minimum  standard  of  law    We  submit  the  following  information  to  illlustrate  how 
meeting  the  minimum  standard  of  law  currently  does  not  protect  the  interests  or  rights  of 
tribes,  nor  does  it  ensure  that  Congress'  intentions  are  carried  out  in  subsequent  regulatory 
language. 

After  completing  three  drafts  of  regulatory  language  without  notifiying  or  consulting  tribes 
in  any  way,  a  solicitor  from  the  Department  of  Interior  and  National  Park  Service 
employees  published  a  fourth  draft  in  the  Federal  Register  on  May  28,  1993    Many  of  the 
tribes  in  our  region  cannot  afford  to  subscribe  to  the  Federal  Register,  and  so  were  not 
"consulted"  at  all,  unless  the  NPS  did  a  special  mailing  we  are  unaware  of  Even  if  the 
NPS  did  do  this,  however,  it  has  been  our  finding  that  many,  many  tribes  were  completely 
unaware  of  the  passage  of  NAGPRA  until  long  after  the  fact,  much  less  cognizant  of  its 
language,  provisions  and  meaning  sufficient  to  submit  written  testimony  before  the 
deadline   How's  that  for  consultation  for  you?  We  should  have  all  been  involved  in  it 
from  the  beginning,  and  that  could  have  been  accomplished  through  the  organization  of 
regional,  tribal  NAGPRA  coalitions.  Our  tribal  governments  are  constantly  putting  out 
one  fire  after  another,  and  do  not  have  the  staff  or  resources  to  watch  everything  that 
Congress  does,  or  respond  to  calls  for  testimony  in  a  timely  fashion    We  must  have  time 
to  organize,  react,  and  network  with  one  another,  and  that,  Senator  McCain,  is  an  integral 
part  of  the  problem  with  meeting  the  minimum  standard  of  the  law!  It  just  doesn't  work 
for  us,  it  works  against  us,  and  is  often  deliberately  used  in  this  way  to  prevent  tribes  from 
having  more  control  over  their  own  lands,  their  own  resources,  and  even  their  own  dead 
relatives  and  sacred  belongings. 

After  the  sixty-day  comment  period  ended,  the  only  opportunities  we  had  to  consult  cost 
our  tribes  thousands  of  dollars  in  travel  funds  to  follow  the  NAGPRA  Review  Committee 
as  they  conducted  their  meetings  around  the  country.  North  Dakota  tribes  absorbed  these 
costs  in  a  desperate  effort  to  be  heard,  to  change  decisions  that  had  already  been  made 
without  our  knowledge  or  input,  to  obtain  some  level  of  input  into  a  process  where  our 
role  was  kept  to  a  minimum,  and  to  raise  awareness  that  things  were  not  right  with  the 
proposed  final  regulations    In  our  view,  the  lengths  to  which  we  went  to  create  awareness 
at  all  levels  is  commensurate  with  the  seriousness  of  the  problems   We  must  have  more 
direct  and  meaningful  representation.  Senator,  our  tribes  must  be  able  to  represent 
themselves  on  matters  as  imporant  as  this. 

Our  Tribal  leadership  used  every  instance  they  travelled  to  Washington,  DC,  to  meet  with 
our  Congressional  delegates  about  the  issue,  and  Standing  Rock  Sioux  Tribal  Chairman 
Jesse  Taken  Alive  and  Councilmember  Tim  Mentz  even  went  to  the  office  of  Tim 
McKeown  at  the  National  Park  Service  to  obtain  a  copy  of  the  proposed  final  regulations, 
and  were  refused  a  copy  by  McKeown  as  he  held  one  in  his  hands!  All  of  our  attempts  to 
obtain,  through  legitimate  channels  ranging  from  the  Office  of  the  President  to  the  Office 


23-074    96-8 


222 


of  the  Assistant  Secretary,  a  copy  of  the  proposed  final  regulations  for  review  and 
comment  failed,  although  we  had  promises  from  individuals  ranging  from  NAGPRA 
Committee  members  to  federal  employees  from  other  agencies  to  provide  us  with  a  copy. 
Our  attempts  to  review  the  proposed  final  regulations  were  made  over  a  period  of  two 
years,  beginning  in  September  of  1 993     Not  until  the  spring  of  1995  did  we  learn  that 
the  decision  tQ  refuse  tribes  another  review  and  comment  period,  allowable  hy  law, 
was  "an  administrative,  internal  decision  of  the  National  Park  Service,"  although  we 
had  been  asking  and  asking  why  we  were  not  allowed  to  see  them.    (Tim  McKeown, 
NPS,  NAGPRA  Training  Workshop,  Haskell  Indian  Nations  University,  Lawrence,  KS, 
April  18-19,  1995  )  At  the  Albany,  New  York  meeting  of  the  NAGPRA  Review 
Commitee,  even  Committee  members  were  refused  when  they  asked  to  see  a  copy  of 
the  proposed  final  regulations. 

Finally,  a  "bootleg"  copy  of  the  proposed  final  regulations  was  sent  to  us  by  a  tribal 
member  from  another  state    These  "bootleg"  regulations,  already  revised  (according  to 
Tim  McKeown  of  the  NPS,  who  made  this  statement  to  our  tribes  at  a  conference  held  by 
the  Nat'l  Museum  of  the  American  Indian  in  Mille  Lacs,  MN  in  September  of  1995)  and 
thus  rather  obsolete,  were  given  to  this  individual  by  a  female  employee*  of  the  National 
Museum  of  the  American  Indian,  which  is  specifically  exempted  from  the  provisions  of 
NAGPRA,  and  is  governed  exclusively  by  the  Museum  Act!  What  was  she  doing  with  a 
copy  of  the  proposed  final  regulations  to  implement  the  NAGPRA,  and  how  did  she  get  a 
copy  when  access  to  This  information  had  been  repeatedly  denied  to  the  very  people  who 
are  directly  impacted  by  the  final  regulations?    How  many  other  members  of  the  science 
and  museum  industries  were  in  Possession  of  these  regulations  when  tribes  were 
categorically  denied  access? 

We  believe  that  the  restricted  level  of  consultation  and  input  by  Native  nations  and  the 
total  control  of  the  regulatory  process  by  the  National  Park  Service  has  resulted  in  the 
suppression  of  our  rights  granted  under  the  law,  elimination  of  protections  to  tribes 
intended  by  Congress,  and  erosion  of  tribal  sovereignty  in  major  Indian  policy  changes 
successfully  manipulated  through  the  regulatory  process.  According  to  the  final 
regulations,  non-Native  employees  of  museums  and  federal  agencies,  many  of  whom  have 
been  and  continue  to  be  hostile  to  Native  attempts  to  repatriate,  are  making  determina- 
tions about  the  sacredness  of  items  created  by  our  people,  and  thus  which  items  will  be 
repatriable  to  tribes,  without  the  necessary  expertise  or  knowledge,  which,  we  note,  is 
knowledge  they  will  never  have.  It  is  our  people,  and  our  people  alone,  who  possess  the 
expertise  necessary  to  inform  all  decisions  made  about  these  items,  but  we  have  been 
efficiently  removed  from  the  realm  of  decision-making.  This  happened  because  we  were 
not  consulted  in  this  matter,  nor  were  we  listened  to  when  we  spoke  up  without  the 
relative  luxury  of  "consultation" 

Also  according  to  the  final  regulations,  we  will  have  to  watch  as  private  landowners  (  read 
non-Indian)  within  our  own  reservation  boundaries  do  whatever  they  want  to  the 
unmarked  burials  of  our  relatives  found  on  their  lands!  That  is  not  what  the  law  says, 
Senator  McCain!  The  reinterpretation  of  the  statutory  definition  of  "Indian  lands"  flies  in 


223 


the  face  of  every  piece  of  accepted  national  Indian  policy  and  legislation  existent  today 
We  believe  the  behavior  of  the  Secretary  of  Interior  and  the  National  Park  Service  is 
unconscionable,  since  they  were  directed  by  Congress  to  carry  out  its  initiatives  in  the  Act, 
and,  we  feel,  deliberately  did  not    Had  our  tribes  been  consulted  on  these  matters  in  a 
more  direct  and  meaningful  way,  Senator  McCain,  had  we  been  allowed  to  represent  and 
negotiate  for  ourselves,  we  would  not  be  faced  with  these  crippling  problems  today 

Because  our  level  of  input  and  control  was  kept  to  a  minimum,  our  tribes  did  everything 
we  could  to  (a)  obtain  a  more  meaningful  and  direct  level  of  participation  (b)  stop  the 
destructive  process  itself  through  repeated  requests,  beginning  in  September  of  1993,  for 
an  Oversight  Hearing  to  review  the  problems  and  issues  we  raised  and  (c)  ask  for  help  and 
intervention  from  elected  leadership,  Secretary  Babbitt,  Assistant  Secretary  Deer,  and  the 
Senate  Committee  on  Indian  Affairs  We  wrote  letters,  we  submitted  testimony,  we 
attended  meetings,  we  made  phone  calls,  we  did  everything  humanly  possible  to  beheard 
We  tell  you  all  this,  Senator  McCain,  and  we  include  copies  of  our  correspondence;  to 
show  that  we  saw  these  problems  coming  down  the  road  a  long  time  ago,  and  we  were 
trying  to  raise  awareness  a  long  time  ago 

But  no  one  responded  to  our  requests  for  an  Oversight  Hearing  when  steps  could 
have  been  taken  to  prevent  the  looting  of  the  law  through  regulatory  language.  Now 
that  the  piper  must  be  paidt  it  is  our  Nations  who  have  absorbed  that  cost,  and  we 
have  paid  with  tears  running  down  our  faces  as  we  watched  several  years'  of  hard 
work,  advocacy  and  trust  swept  away  in  the  stroke  of  a  bureaucratic  pen. 

We  say  again  that  the  present  system  of  consultation  does  not  work,  it  never  has, 
because  a  federal  agency  has  only  to  meet  a  minimum  standard  of  law  that  does  not 
provide  us  with  meaningful  representation  or  protection  of  basic,  human  rights 
taken  for  granted  by  all  other  Americans,  here  in  our  own  homelands!  As  we  told 
you  earlier,  the  NAGPRA  representatives  from  our  tribes  are  even  now  preparing  an 
official  complaint  against  the  Bureau  of  Reclamation,  which  decided  to  "give"  our 
ancestors'  remains  excavated  from  their  lands  to  the  Smithsonian  Institution    The 
Smithsonian,  moreover,  does  not  have  a  repatriation  deadline,  and  their  Repatriation 
Office  is,  even  as  you  read  this,  conducting  expensive,  instrusive  scientific  studies  on  our 
ancestors'  remains,  without  our  permission  and  without  consulting  us!  Reclamation 
claims  that  since  it  did  not  have  "possession"  of  the  remains,  they  did  not  have  "control" 
either,  and,  without  notifying  or  consulting  our  tribes,  relinquished  both  to  the 
Smithsonian  Institution   Reclamation  also  claims  that  it  has  met  the  minimum  standard  of 
the  law  in  consulting  our  tribes  after  the  fact. 

We  say  again  that  the  present  process  has  protected  the  personal,  vested  interests  of 
the  science  and  museum  industries  and  this  gift  was  delivered  to  them  on  a  silver 
platter  by  the  National  Park  Service,  which  was  entrusted  by  Congress  to  implement 
its  intentions  and  initiatives  to  correct  a  sad  and  tragic  chapter  in  American  history. 
Not  only  were  we  wronged,  Senator  McCain,  but  the  members  of  your  Committee 


$  tidttoJUL  bvoiw  vu-  &W^o  wi*v  ^4>(^-^r- 


224 


and  other  Congressmen  who  worked  hard  for  and  supported  this  legislation  are 
victims  as  well. 

It  is  imperative,  and  we  again  submit  this  request,  that  the  Senate  Committee  begin 
a  dialogue  with  tribal  leadership  to  review  and  amend  the  Administrative 
Procedures  Act  to  create  more  direct  and  meaningful  representation  of  Indian 
Tribes  whenever  legislation  or  regulations  are  drafted  to  implement  changes  which 
will  affect  our  peoples.     As  you  can  see  from  the  serious  problems  we  have  shared  with 
you,  we  require  more  than  a  simple  advisory  role,  Senator  McCain,  we  require  negoiatory 
powers,  we  require  oversight,  we  require  intervention  and  protection.    Nothing  will 
change  until  the  system  changes. 

Please  find  attached  to  this  section  of  our  response  copies  of  correspondence  we  have  sent 
over  the  years  regarding  our  attempts  to  obtain  more  meaningful  representation,  consul- 
tation, and  resolution  to  the  very  problems  in  the  regulations.  The  only  responses  we 
received  were  from  Senators  Dorgan,  Conrad  and  Daschle,  and,  through  the  efforts  of 
Senator  Dorgan,  Assistant  Secretary  Deer's  promise  not  to  sign  off  on  the  proposed  final 
regulations  until  after  another  public  comment  period  was  held  -  a  promise  she  subse- 
quently broke,  enabling  the  regulations  to  be  "hustled"  into  the  final  stage. 


*  Information  relative  to  the  individuals  involved  in  this  situation  is  available  in  the  event 
that  it  is  needed.  We  refrain  from  mentioning  names  in  this  instance  only  because  we  do 
not  wish  to  create  problems  for  the  participants,  however,  if  you  require  their  names  to 
determine  the  validity  of  the  statement,  that  information  will  be  provided  to  you 


225 


Question  3,  Page  1,  McCain  Letter,  provide  the  Committee  with  a  response  regarding  the 
development  and  scope  of  the  final  regulations 

Senator  McCain,  you  can  see  from  statements  made  throughout  this  document  that  we 
have  had  problems  with  the  development  and  scope  of  the  final  regulations  since  a 
proposed  draft  was  published  in  May  of  1993    Problems  with  development  include  a  near- 
total  absence  of  tribal  participation,  input,  representation  and  control    Add  to  this  the 
NPS'  administrative  refusal,  despite  repeated  requests  from  tribes,  for  another  publication 
and  another  comment  period  of  proposed  regulations    Mix  in  a  dose  of  the  BIA's  usual 
response  to  pleas  of  help  from  tribes,  which  accounts  for  Assistant  Secretary  Deer's 
decision  to  sign  off  on  the  proposed  final  regulations  even  though  she'd  promised  us  she 
wouldn't,  and  you  have  a  recipe  for  disaster,  and  you  have  our  view  on  the  development  of 
the  final  regulations    That's  also  where  the  scope  of  the  final  regulations  enters  the 
picture 

The  damage  done  to  the  Act  itself,  not  to  mention  protections  granted  to  tribes  under  the 
Act  through  the  promulgation  of  these  regulations,  is  enormous  in  scope   The  recent 
Hawaii  ruling  is  an  excellent  illustration  of  how  the  law  has  been  reinterpreted  to  benefit 
the  personal,  vested  interests  of  the  science  and  musem  industries,  something  we  predicted 
years  ago    Reinterpretations  have  occured  which  condone  scientific  studies  not  covered  in 
the  Act    Reinterpretations  of  Indian  lands,  Indian  tribes,  possession  and  control,  and  even 
a  new  definition  of  Native  human  remains  have  all  resulted  in  nothing  less  than  major 
Indian/U  S  policy  changes  manipulated  through  the  regulatory  process. 

Irreparable  damage  has  been  done  to  not  only  the  trust  relationship  Congress  is 
responsible  to  carry  out  with  Native  nations,  but  to  the  quality  of  trust  itself  in  all 
relationships  between  our  tribes  and  the  federal  government,  which  was  not  doing  that 
well  to  begin  with    We  trusted  Congress  to  provide  us  with  a  mechanism  which  would 
allow  us  to  bring  home  our  sacred  and  cultural  property,  as  well  as  our  dead  and  their 
belongings,  so  we  could  rebury  them  with  dignity,  privacy  and  respect    We  trusted  the 
process,  which  allowed  the  National  Park  Service  and  the  NAGPRA  Review  Committee 
to  promulgate  regulations  to  implement  the  letter,  the  intent  and  the  spirit  of  the  law   We 
trusted  the  dispute  resolution  process  provided  for  in  the  law,  which  directs  us  to  the 
courts  in  the  event  that  informal  mediation  fails. 

As  in  anything  created  by  human  beings,  the  Act  is  not  perfect,  but  we  are  finding  that  the 
imperfections  and  loopholes  most  heavily  affect  the  needs  and  interests  of  Native  peoples, 
and  not  our  opponents,  the  museum  and  science  industries    As  we  have  said  before,  the 
process  is  replete  with  problems  and  pitfalls  for  Native  peoples,  and  must  be  corrected  to 
give  us  a  more  direct  and  meaningful  role  in  legislation  that  directly  impacts  our  peoples 

The  process  has  diverted,  negated  and  eroded  the  plain  meaning  of  statutory  language  in 
matters  ranging  from  tribal  lands  to  the  dead  bodies  of  our  relatives,  our  loved  ones   We 
screamed  and  hollered  about  the  process  and  the  potential  scope  of  the  regulations,  and  no 
one  listened    That's  another  problem  with  the  process:  tribes  are  not  heard    As  to  dispute 


226 


resolutions,  a  cursory  reading  of  the  final  regulations  will  show  how,  time  and  time  again, 
tribes  are  directed  to  the  courts  to  find  relief  for  every  single  dispute  with  museums  and 
federal  agencies!  We  are  poor,  and  cannot  afford  to  litigate  every  time  a  museum  decides 
it  does  not  have  to  return  our  dead  or  our  sacred  and  cultural  property. 

Moreover,  the  recent  Hawaii  ruling  very  clearly  illustrates  ambiguities  and  loopholes  in  the 
law  that  protect  the  interests  of  the  science  and  musem  industries,  and  not  Native  peoples'. 
So  you  see,  Senator,  the  development  and  scope  of  the  final  regulations  have  had  the 
effect  of  preventing  tribes'  from  enjoying  the  full  benefits  intended  by  Congress  when  the 
law  was  passed  in  1990    We  maintain  that  the  deck  was  stacked  against  us  from  the 
beginning,  and  the  results  of  playing  with  a  stacked  deck  are  there  for  you  to  see  in 
the  final  regulations,  which  are  of  little  use  but  great  harm  to  our  tribes  as  we 
attempt  to  implement  the  original  intentions  of  the  Native  American  Graves 
Protection  and  Repatriation  Act. 


227 


ANSWERS  TO  THE  QUESTIONS  DEALING  WITH  THE  HAWAII  RULING 

QUESTION  1,  Page  2,  McCain  Letter,  part  (a)  whether  NAGPRA  inventory  information 
should  be  subject  to  public  disclosure. 

As  we  discussed  earlier  in  this  document,  Senator  McCain,  our  tribes  do  not  feel  that 
NAGPRA  inventory  information,  dealing  as  it  does  with  human  remains  and  burial 
belongings,  should  be  subject  to  public  disclosure    Letters  can  be  sent  to  those  tribes  who 
may  have  an  interest  in  a  particular  claim,  but  when  regional  coalitions  can  be  organized, 
we  will  be  reaching  agreement  about  these  remains  ourselves,  thus  resolving  any  potential 
claim  disputes    We  are  particularly  concerned,  Senator,  about  certain  unscrupulous 
individuals  who  have  already  approached  our  tribes  and  enrolled  members  about  selling 
(for  amounts  in  the  hundreds  of  thousands  of  dollars)  certain  artifacts  and  sacred  objects. 
Publications  of  inventories  or  repatriation  activities  are  already  being  utilized  by  these 
individuals  to  locate  these  artifacts  and  other  objects  ,  and  to  our  knowledge,  one  war  shirt 
and  a  very  special  sacred  pipe,  both  of  great  spiritual  and  emotional  value,  have  been  sold 
overseas  to  unknown  collectors    In  order  to  prevent  exploitation  of  this  type  from 
occurring  again,  publication  of  this  information  must  be  restricted  to  general  information 
and  supplemented  with  letters  to  official  NAGPRA  representatives  of  other  tribes  who 
may  have  a  demonstrable  interest    Moreover,  it  is  our  great  desire  to  accord  our  ancestors 
the  highest  degree  of  dignity  in  a  situation  where  a  basic  human  dignity  has  been  denied 
them  for  many  years,  it  will  be  extremely  difficult  to  bring  our  relatives  home  in  a  private 
and  dignified  manner  when  the  news  surrounding  their  repatriation  and  pending  reburial 
has  been  shouted  from  the  rooftops    We  do  not  feel  that  our  requirement  of  privacy  and 
respectful  treatment  of  our  people  and  our  ancestors  is  unreasonable    To  that  end,  our 
tribes  offer  our  assistance  in  the  development  of  any  proposed  amendment  to  the  Act  to 
facilitate  an  exemption  for  this  information  under  the  Freedom  of  Information  Act 

QUESTION  1,  Part  (b),  whether  Congress  should  act  to  amend  NAGPRA  to  provide 
protection  from  public  disclosure  of  information  derived  from  NAGPRA  inventories 

The  North  Dakota  tribes  feel  very  strongly  that  Congress  should  act  to  amend  NAGPRA 
in  this  and  other  matters  relating  to  the  confidential  treatment  of  information  contained  not 
only  in  inventories,  but  also  relating  to  items  of  sacred  and  perhaps  even  cultural 
patrimony   History  serves  us  in  this  matter,  since  it  illustrates  very  clearly  what  happens 
when  Native  spiritual  and  cultural  values  are  ignored,  even  though  knowledge  of  them  is 
available  to  the  general  public:  our  oral  history,  ceremonies,  stories  and  even  our  graves 
were  unabashedly  "mined"  by  the  science  and  academia,  and  even  by  the  citizenry.    The 
very  safety  and  security  of  reburial  sites  depends  on  Congress  acting  now  to  provide 
restrictions  regarding  public  disclosure.  Now,  more  than  ever,  we  require  a  little  privacy, 
a  little  respect,  as  we  work  to  restore  to  our  ancestors  the  self-evident,  human  right  to  rest 
in  peace  and  dignity    Definite  steps  should  now  be  taken  by  Congress  to  protect  the 
privacy  of  our  tribes  and  our  ancestors,  and  NAGPRA  should  be  amended  to 
exempt  all  repatriation  information  from  public  disclosure,  particularly  since  a 
district  judge  has  just  decided  for  us  that  our  ancestors  have  no  rights,  not  even  the 


228 


right  to  rest  in  peace  and  privacy  enjoyed  by  all  others  who  now  live  in  our 
homelands,  and  that  we,  as  their  descendants,  have  no  rights  to  basic  privacy, 
human  decency  and  respect  for  our  spiritual  values  and  beliefs. 

Since  the  Hawaii  ruling  raises  problems  which  were  not  anticipated  when  the  law  was 
enacted,  such  as  ensuring  the  right  of  privacy  and  respectful  treatment  for  Native  peoples 
as  they  repatriate  and  rebury  their  ancestors'  human  remains  and  personal  burial 
belongings,  it  affords  us  the  opportunity  to  consider  other  matters  of  confidentiality  as 
well    It  is  our  hope  that  the  Committee  can  easily  see  how  privacy  is  required  in  the 
repatriation  of  sacred  and  cultural  patrimony  as  well,  beginning  with  the  sacred  knowledge 
tribes  are  required  to  share  in  order  to  identify  and  claim  our  sacred  and  cultural 
patrimony,  and  ending  with  the  desire  to  repatriate  and  rebury  our  relatives  with  respectful 
privacy,  thus  ensuring  the  safety  and  sanctity  of  all  reburial  sites.  As  we  mentioned  earlier, 
Native  peoples  are  just  as  vulnerable  now  as  they  were  in  historical  times  when  they  were 
preyed  upon  by  roving  ethnologists,  anthropologists  and  archeologists,  who,  convinced 
we  were  going  to  vanish  from  the  face  of  the  earth,  advanced  upon  our  peoples  with 
greedy  eyes  and  amassed  huge  collections  in  the  process.  The  problem  today  is  only 
slightly  different,  since  we  are  now  assailed  by  collectors  of  a  different  sort  -  the  kind  who 
want  to  sell  our  sacred  and  cultural  patrimony  overseas  and  who  accomplish  their  aim  by 
dangling  large  sums  of  money  before  the  eyes  of  vulnerable,  impoverished  tribal  members 
who  can  claim  a  lineal  descent  to  famous  political  and  spiritual  ancestors. 

Particularly  in  light  of  the  fact  that  the  ruling  will  not  be  appealed,  we  say  again  that 
Congress  must  act  now  to  protect  the  privacy  and  dignity  of  our  ancestors,  our  elders  and 
spiritual  leaders,  and  our  entire  Nations  as  we  work  to  bring  our  sad  task  of  reburial  and 
repatriation  to  a  close.  Things  are  painful  enough;  we  should  not  have  to  endure  all  of 
America  watching  over  our  shoulders  as  we  rebury  our  dead:  we  will  have  to  feed  them, 
we  will  have  to  cry  for  them,  and  apologize  to  them  for  the  way  they  have  been  treated  - 
we  will  need  privacy  and,  finally,  respect  from  the  society  that  did  this  to  them.  Is  this  so 
much  to  ask?  We  don't  think  so. 

QUESTION  #1,  part  (c),  whether  protection  from  public  disclosure  of  information 
derived  from  NAGPRA  inventories  should  be  limited  in  scope,  and  if  so,  in  what  respect? 

Senator  McCain,  as  you  have  gathered  from  statements  elsewhere  in  this  document,  our 
tribes  believe  that  protection  from  public  disclosure  of  all  repatriation  information  should 
be  very  broad  in  scope,  if  all  the  problems  associated  with  lack  of  confidentiality  are  going 
to  be  addressed.  We  tribes  urgently  require  the  highest  level  of  privacy  if  we  are  going  to 
ensure  a  dignified,  peaceful  and  respectful  return  of  our  ancestral  human  remains,  sacred 
property  and  even  items  of  cultural  patrimony.  It  should  not  be  left  even  to  Congress  to 
decide  how  much,  if  any,  privacy  the  tribes  will  require.  That  decision  should  be  left  to 
the  individual  tribes  themselves,  as  this  is  a  decision  we  are  entirely  capable  of  making  for 
ourselves    Outcomes  of  our  decisions  will  vary,  depending  upon  the  spiritual  and  cultural 
values  maintained  by  the  various  Nations  regarding  this  type  of  information   To  some, 
like  our  Nations  in  the  Northern  Plains,  this  is  an  extremely  sensitive  subject,  but  we  have 


229 


learned  that  other  tribes  have  allowed  news  programs  to  cover  reburial  and  other  types  of 
ceremonies,  indeed  one  tribe  has  produced  their  own  video  of  a  repatriation  and  reburial 
ceremony.  You  can  see,  then,  that  our  diverse  cultures  and  value  systems  will  require  the 
flexibility  of  being  able  to  make  all  decisions  about  confidentiality  for  ourselves,  and  since 
such  a  wide  range  is  required  to  allow  for  this,  nothing  less  than  complete  protection  of  all 
repatriation  records,  materials  and  other  information  is  required. 

QUESTION  #1,  part  (d),  whether  NAGPRA  inventory  information  should  be  exempted 
from  the  application  of  the  Freedom  of  Information  Act. 

Once  again,  Senator,  elsewhere  in  this  document  our  tribes  have  maintained  that  complete 
exemption  of  all  repatriation  information,  including  NAGPRA  inventories,  is  absolutely 
required  under  the  Freedom  of  Information  Act.  Nothing  less  will  suffice,  in  our  view 


230 


QUESTION  2,  Page  2,  McCain  Letter,  part  (a),  whether  NAGPRA  sufficiently  addresses 
the  issue  of  necessary  scientific  studies  which  may  be  initiated  during  the  course  of 
compiling  and  inventory  to  comply  with  NAGPRA 

Senator  McCain,  we  are  so  glad  you  asked  us  to  respond  to  all  of  the  questions  you  sent 
us,  but  we  are  particularly  glad  you  asked  this  question    You  see,  Senator,  our  tribes 
have  had  problems  with  this  area  of  NAGPRA  since  we  saw  the  first  draft  of  legislation, 
and  called  attention  to  our  issues  with  it  right  from  the  beginning    We  felt,  and  continue 
to  feel,  that  the  law's  use  of  the  word  "study"  was  very  ambiguous,  particularly  where 
it  concerned  activities  related  to  the  compilation  of  inventories.  Our  tribes  have 
negotiated  our  way  through  a  number  of  exit  inventories  at  both  the  state  and  federal 
agency  levels,  and  in  our  experience  the  area  of  "inventorying"  the  remains  of  our  relatives 
appears  to  be  the  last  bastion  of  hope  for  the  science  and  museum  industries  who 
desperately  want  to  use  "exit  inventories"  of  our  ancestors'  remains  to  conduct  one  last 
scientific  examination  of  our  relatives,  with  or  without  our  permission,  because  they,  too, 
see  the  ambiguity  in  the  law  and  hope  to  take  advantage  of  it 

Way  back  in  1988,  we  were  calling  for  clear  and  concise  language  describing  precisely 
what  museums  and  federal  agencies  were  allowed  or  not  allowed  to  do  during  an  "exit 
inventory"  of  our  ancestors'  remains   We  were  told,  however,  that  it  was  at  our  urging 
that  language  was  included  to  state  that  the  Act  was  not  to  be  construed  as  an 
authorization  of  new  scientific  studies,  and  contented  ourselves  with  that  section  of  the 
law.  It  has  been,  however,  our  direct  experience  that  many,  many  federal  agencies  and 
museums  ignored  this  directive  and  subjected  most,  if  not  all,  remains  in  their  control  or 
possession  to  rigorous,  state-of-the-art  scientific  study,  under  the  guise  of  compiling  their 
inventories    The  Bureau  of  Reclamation,  for  instance,  without  notification  or  consultation 
of  our  tribes,  informed  us  that  they  developed  an  Inventory  Plan  (30+  pages),  to  be  used 
agency-wide,  which  calls  for,  among  other  things,  radiography  of  our  relatives'  bones 
Radiography  is  a  procedure  which  requires  that  the  bones  be  coated  with  a  radioactive 
liquid  substance  before  photographing  them  with  a  special  film    Our  tribes,  over  ten 
years  ago,  officially  took  the  position  that  we  were  categorically  opposed  to  any  type 
of  "study"  of  our  relatives'  remains  and  personal  burial  property.  We  are  opposed 
to  photography,  never  mind  radiography! 

Our  permission  was  never  sought  to  conduct  this  or  any  other  type  of  study  on  our 
relatives,  and  had  it  been,  it  would  never  have  been  granted    Indeed,  our  tribes  knew 
nothing  of  Reclamation's  inventory  activities  until  well  after  the  fact    Please  find  attached 
a  copy  of  their  Inventory  Plan,  which  was  presented  to  our  tribes'  NAGPRA 
representatives  on  September  of  1995  by  Reclamation,  where  you  can  see  for  yourselves 
the  level  of  study  which  has  already  been  carried  out  under  the  cloak  of  conducting  an 
"inventory"  and  discovering  "cultural  affiliation"  of  our  ancestors'  remains    Senator 
McCain,  please  take  careful  note  of  what  we  are  going  to  tell  you  now:  There  is  not 
now,  nor  has  there  ever  been,  a  single  scientific  test  method  available  which  will 
conclusively  identify  a  set  of  Native  human  remains  as  to  tribal  origin.  In  our  view, 


231 


and  in  the  official  position  our  tribes  have  long  held  on  this  matter,  all  such 
determinations  are  based  on  conjecture  and  are  speculative  in  nature. 

Moreover,  had  the  science  and  museum  industries  treated  our  ancestors'  remains  with  the 
barest  of  professional  standards,  they  would  now  be  able  to  examine  existing  records  and 
data  to  determine,  to  the  best  of  their  ability,  the  tribal  affiliation  of  our  ancestors'  remains. 
This,  as  you  know,  however,  has  not  been  the  case,  as  our  ancestors'  remains  and  personal 
burial  belongings  have  been  casually  and  sloppily  stored  in  hallways,  closets,  in  brown 
paper  grocery  bags  and  feminine  hygiene  product  boxes  (one  tribe  was  actually  given 
repatriated  remains  in  this  type  of  container  by  a  state  agency!),  placed  on  public  display 
with  no  scientific  or  educational  information  -  just  for  the  sheer  thrill  (and  some-times  for 
a  price)  of  public  viewing  of  dead  Native  people;  loaned  to  colleagues  and  museums  half- 
way around  the  world  and  totally  forgotten  about  until  someone  had  to  go  looking  for 
them  to  complete  their  inventories,  and  generally  stashed  away  in  thousands  of  dusty 
storage  rooms  and  university  labs  all  over  the  country    Many  of  our  ancestors  were 
simply  packed  up  and  shipped  to  historical  societies,  museums  and  federal  agencies  by 
everyday  citizens,  who  came  across  them  in  farming  and  other  activities  and  "donated"  our 
relatives'  bodies  to  repositories  as  "curiosities."  All  without  our  peoples'  knowledge  or 
permission. 

One  federal  agency  that  we  know  of,  but  probably  others  as  well,  has  used  the  NAGPRA 
inventory  process  to  "give  away"  some  of  our  ancestors  who  were  excavated  from  their 
lands  -  again,  the  Bureau  of  Reclamation.  We  were  not  informed  of  this  "inventory" 
decision  until  well  after  the  fact,  we  were  not  notified,  we  were  not  consulted  and  so  had 
no  opportunity  to  protect  our  relatives'  remains  from  the  clutches  of  the  Smithsonian 
Institution,  who  claimed  "ownership"  of  the  remains  by  virtue  of  having  had  "possession" 
of  them  since  they  were  excavated  in  the  1940's.  Our  hearts  feel  heavy  and  sad  when  we 
think  of  the  intrusive  scientific  analysis  that  is  probably  being  aggressively  conducted  on 
our  relatives  by  the  Smithsonian  as  you  read  these  words 

The  point  we  are  trying  to  make,  of  course,  is  that  our  relatives'  earthly  remains  and 
personal  burial  property  have  NEVER  been  treated  respectfully  or  even  profession- 
ally by  the  science  and  museum  industries,  indeed  society  in  general,  to  the  point 
that  anyone  even  cared  sufficiently  about  them  to  adequately  document  and  store 
their  bodies  once  they  had  been  yanked  from  their  graves.  It  was  only  when  Native 
people  discovered  this  deplorable  situation  and  rose  to  stop  the  racist  practice  of  the 
robbery  and  study  of  our  graves  was  the  "loss"  to  science  loudly  and  arrogantly 
lamented.    Amid  great  gnashing  of  teeth,  the  rush  was  on  to  study,  document, 
analyze  and  further  desecrate  our  relatives  before  precious  "scientific  and  cultural 
materials"  could  be  "destroyed"  through  reburial. 

In  our  view,  the  science  and  museum  industries  have  only  themselves  to  blame  that 
they  did  not  correctly  catalog  and  store  our  dead  relatives  while  they  had  them,  and 
should  not  now  be  allowed  to  gather  one  more  iota  of  data  from  our  relatives  under 
the  cloak  of  conducting  NAGPRA  inventories.  We  said  this  back  in  1988  and  we  are 


232 


still  here  to  say  it  again,  all  these  years  later!  It  is,  in  most  cases  however,  too  late  - 
the  damage  has  been  done  and  so  has  the  scientific  analysis.  Our  tribes  know 
personally  many  members  of  the  science  and  museum  industries  who  would  chuckle 
smugly  at  hearing  us  utter  that  last  sentence,  and  we  don't  mind  telling  you, 
Senator,  that  thought  fills  us  with  pain  and  sorrow. 

We  suspected  that  this  was  happening  all  along,  of  course,  and  more  or  less  knew 
scientific  study  and  analysis  was  surreptitiously  conducted  under  the  guise  of  inventorying, 
but  due  to  the  secrecy  and  failure  of  federal  agencies  and  museums  to  notify  and  consult 
with  tribes  as  inventories  were  initiated  and  compiled,  we  had  no  evidence  until  well  after 
the  fact,  and  so,  what  could  we  do9    It  is  our  strong  view  that  NAGPRA  should  be 
amended  to  fine  all  federal  agencies  and  museums  who  conducted  this  racist, 
ethnocentric  study  without  the  notification  or  permission  of  the  descendants  of  our 
ancestors,  and  they  should  be  made  to  turn  over  to  tribes  all  documents  and  data 
gathered  from  these  studies  to  prevent  them  from  ever  benefiting  from  this  ill-gotten 
information.  Apparently,  this  type  of  redress  is  what  Hui  Ma  Lama  was  attempting  to 
obtain  with  their  lawsuit,  we  wish  to  state  here  for  the  record  that  we  are  in  complete 
agreement  with  their  intentions,  and  would  have  ourselves  brought  suit  if  we  had  the 
financial  resources  to  do  so    It  is  unfortunate  that  the  judge  in  this  case  issued  such  a 
narrow  and  ill-informed  decision,  more  unfortunate  still  that  the  decision  will  not  be 
appealed.  Due  to  that  fact,  Senator  McCain,  it  is  more  imperative  than  ever  that 
NAGPRA  be  amended  to  address  all  of  the  issues  raised  in  the  Hawaii  ruling,  and 
utterly  critical  that  Native  peoples  be  allowed  a  greater  and  more  meaningful  voice 
during  all  deliberations  about  amendments  to  the  law. 


QUESTION  2,  Page  2,  McCain  Letter,  part  (b),  whether  the  Definitions  section  of 
NAGPRA  should  be  amended  to  include  definitions  of  "inventory,"  "scientific  studies," 
and  "scientific  information  " 

As  we  said  earlier,  Senator,  our  tribes  argued  for  this  clarification  years  ago  when  the 
legislation  was  still  being  discussed  by  Congress    We  not  only  believe  very  strongly  that 
definitions  of  these  words  are  needed  still  today,  we  offer  you  the  following  proposed 
definitions,  which  our  tribes  have  already  used  in  agreements  concerning  existing 
collections  with  state  and  federal  agencies.  They  have  worked  extremely  well  and  would 
completely  protect  our  position  (and  that  of  other  tribes')  on  study  or  scientific  analysis  if 
amended  into  the  law 

INVENTORY  -  shall  mean  the  physical  creation  of  (a)  a  listing  of  the  contents  of 
containers  storing  human  remains  and/or  personal  burial  belongings  and  (2)  other  existing 
records. 

SCIENTIFIC  STUDY  -  shall  mean  any  activity  requiring  the  human  remains  or  personal 
burial  belongings  to  be  touched  by  anyone  other  than  a  tribal  spiritual  leader 


233 


SCIENTIFIC  INFORMATION  -  shall  include,  but  not  be  limited  to,  any  data,  records, 
photographs,  radiographs,  plaster  castings,  measurements,  weights,  recorded  audio  or 
video  tapes,  books,  articles,  essays,  monographs,  bulletins,  test  findings  or  results,  or 
professional  scientific  papers  of  any  sort. 

QUESTION  2,  Page  2,  McCain  Letter,  part  (c),  would  further  scientific  studies,  either 
during  the  course  of  compilation  of  an  inventory  or  after  the  conclusion  of  such  an 
inventory,  be  warranted? 

Senator,  based  upon  the  official  position  taken  by  our  North  Dakota  tribes,  and  based 
upon  all  the  foregoing  statements  in  this  document,  our  answer  is  short  and  unequivocal: 
ABSOLUTELY  NOT    You  see,  based  upon  our  spiritual  beliefs,  when  the  scientists  and 
others  robbed  their  graves,  our  relatives  were  yanked  out  of  the  Spirit  World,  too  -  we 
have  seen  them,  where  they're  at,  and  they  are  pitiful,  crying  and  lost.  They  wander 
between  this  world  and  theirs,  and  they  whirl  above  the  places  where  their  bodies  are  kept, 
and  they  whirl  above  all  of  us,  too,  trying  to  get  our  attention  so  we  can  help  them.  The 
fact  that  they  are  around  us,  restless  and  agitated,  affects  us,  too,  and  our  people  have 
suffered  and  endured  too  many  tragedies  to  prolong  the  suffering  by  allowing  any  further 
racist,  ethnocentric  study  of  our  poor  Old  Ones   Our  ancestors  and  our  people  have 
suffered  enough,  and,  understandably,  we  just  want  it  to  stop. 

Moreover,  we  have  never  benefited  from  these  racist  studies,  and  contend  that  the  only 
ones  who  gain  are  the  ones  who  conduct  them,  but  even  these  members  of  the  science  and 
museum  industries  must  be  pitied,  for  their  gain  is  only  temporary  and  they  must  one  day 
go  home  to  the  Spirit  World,  too,  and  there  they  will  encounter  those  they  have  violated  in 
their  days  upon  this  Earth.  They  are,  indeed,  to  be  pitied  then. 


QUESTION  3,  Page  2,  McCain  Letter  -  should  the  Congress  amend  the  Act  to  provide 
authority  for  legal  actions  to  be  brought  by  those  who  may  qualify  to  serve  as  guardians 
on  behalf  of  Native  human  remains? 

Again,  Senator,  because  of  our  official  positions  on  all  NAGPRA-related  matters,  as  well 
as  all  of  our  foregoing  statements  regarding  problems  we  have  encountered,  our  answer 
must  be  short  and  unequivocal:  ABSOLUTELY  YES    An  amendment  of  this  kind  will 
provide  immeasurable  relief  to  Native  people,  in  addition  to  critically  necessary  legal 
standing  for  tribes  as  they  meet  with  all  kinds  of  resistance  from  the  science  and  museum 
industries,  who  must  hate  the  thought  of  giving  up  any  of  their  treasures,  and  who  will 
obviously  subject  themselves  to  new  lows  to  keep  whatever  they  can.  An  amendment  of 
this  nature  will  empower  all  Native  peoples  as  they  struggle  to  make  NAGPRA  do  what 
Congress  intended  it  to  do,  it  will  be  like  rain  to  a  parched  desert:  finally,  finally  comfort 
and  succor!  We  cannot  stress  strongly  enough,  particularly  in  light  of  the  recent 
court  ruling  in  Hawaii,  how  critically  urgent  it  is  for  Congress  to  enact  this  type  of 
amendment  to  the  NAGPRA. 


234 


CHAIRMAN 

Gregg  J.  BourlanrJ 

SECRETARY 
Arlene  Thompson 


VICE-CHAIRMAN 
Lanny  LaPlante 


The  Honorable  Senator  John  McCain 
Senate  Committee  on  Indian  Affairs 
United  States  Senate 
Washington,  DC  20510 

Dear  Sir, 


P.O.  Box  590 

Eagle  Butte.  South  Dakota  57625 

(605)  964-4155 

Fax:    (605)964-4151 

December  19,  1995 


TRIBAL  COUNCIL  MEMBERS 

DISTRICT    1 
Raymond  Uses  The  Knife  Jr. 
Vernon  Mestes 

DISTRICT    2 
Ted  Knrte  Sr. 

DISTRICT    3 
Maynard  Dupns 
Ed  Widow 

DISTRICT    4 
Robert  Lotion  Sr. 
Gilbert  Red  Dog  Sr. 
Orvtlle  LaPlante 
Arlee  High  Elk 

DISTRICT    5 

Marlin  Miner  Sr. 
Sam  Annls 
Robert  Chasing  Hawk 
Lanny  LaPlante 

DISTRICT    6 
Joan  LeBeau 
Louis  OuBray 


1  am  submitting  to  you  and  to  the  Committee  on  Indian  Affairs,  for  review  and  consideration,  the  following 
comments  drafted  by  my  tribe  regarding  the  final  rule  of  regulations  for  implementing  the  Native  American 
Graves  Protection  and  Repatriation  Act;  PL- 101-601.  Attached,  please  find  five  pages  of  commentary  that  detail 
our  concerns  that  we  have  as  Native  American  people,  who  regard  with  trepidation,  just  how  poorly  that  the 
regulations  for  NAGPRA.  interpret  and  implement  the  statutory  language. 

I  would  also  submit  to  you  on  behalf  of  the  Cheyenne  River  Sioux  Tribe  of  Indians  That  we  the  Lakota  people 
of  the  Cheyenne  River  Sioux  Tribe,  believe  that  the  process  of  promulgating  the  regulations  that  was  undertaken 
by  the  National  Park  Service,  has  totally  failed  to  adequately  support  and  advocate  the  Indian  peoples  right  to 
repatriate  without  hindrance,  our  ancestors  and  their  cultural  items  that  have  been  stolen  from  our  lands  by 
profiteering  peoples  seeking  to  achieve  capitol  gain  at  our  expense 

As  Chairman  of  the  Cheyenne  River  Sioux  Tnbe  of  Indians,  I  submit  that  the  Indian  people  have  not  been  allowed 
to  fully  participate  in  this  promulgation  process.  And  that  our  concerns  for  our  ancestors  have  been  shoved  aside 
and  disregarded  by  those  who  were  given  the  authority  and  directive  to  write  the  regulatory  language  that  should 
protect  our  rights  and  the  rights  of  our  deceased  ancestors  who  have  been  held  in  captivity  for  so  many  years. 

I  respectfully  request  that  you  review  the  commentary  submitted  by  the  Cheyenne  River  Sioux  Tribe  and  take 
action  towards  addressing  our  concerns.  And  I  pray  that  when  you  complete  your  review,  that  yourself,  can  begin 
to  understand  our  view  of  this  situation  and  take  whatever  necessary  steps  that  must  be  taken  to  address  our 
concerns  and  right  the  wrongs  that  have  been  perpetrated  upon  all  the  Indian  people  by  the  drafters  of  the 
regulations,  who  have  weakened  our  legal  standing  in  using  the  law  to  repatriate  our  ancestors  and  our  birth  right 
as  Native  peoples. 


rland,  Chairman 
Cheyenne  River  Sioux  Tribe 


The  blue  represents  the  thunder  clouds  above  the  world  where  live  the  thunder  birds  who  control  the  lour  winds.  The  rainbow  Is  tor  the  Cheyenne  River  Sioux  People  who  are 
keepers  of  the  Most  Sacred  Calf  Pipe,  a  gift  from  the  White  Buffalo  Calf  Maiden  The  eagle  feathers  at  the  edges  of  the  rim  of  the  world  represent  the  spotted  eagle  who  Is  the 
protector  ot  all  Lakota  The  two  pipes  (used  together  are  for  unity  One  pipe  Is  lor  the  Lakota.  the  other  for  all  the  other  Indian  Nations  The  yellow  hoops  represent  the 
Sacred  Hoop,  which  shall  not  be  broken  The  Sacred  Cart  Pipe  Bundle  In  red  represents  Wakan  Tanka-the  Great  Mystery  All  the  colors  of  the  Lakota  are  visible.  The  red. 
yellow.  Mack  and  white  represent  the  tour  major  races.  The  blue  is  for  heaven  and  the  green  lor  Mother  Earth 


235 


Section  10.2  Definitions 

(b)(1)  Lineal  descendant  -  Although  this  clause  acknowledges  the  right  to  determine  descendance 
by  means  of  the  traditional  kinship  system  of  the  appropriate  Indian  tribe.  In  the  form  in  which  it  has 
been  written  in  the  regulatory  language; 

"means  an  individual  tracing  his  or  her  ancestry  directly  and  without  interruption 
by  means  of  the  traditional  kinship  system  of  the  appropriate  Indian  tribe  or  Native 
Hawaiian  organization  or  by  the  common  law  system  of  descendance  to  a  known 
Native  American  individual  whose  remains,  funerary  objects,  or  sacred  objects  are 
being  claimed  under  these  regulations. 

The  clause  as  written  does  not  "specify"  nor  "mandate"  that  the  applicable  legal  law  to  determine 
kinship  regarding  the  demonstration  of  Native  American  descendance  to  a  known  Native  American 
individual  should  be  the  "tribal  law"  of  the  appropriate  Indian  tribe.  The  phrase;  or  by  the  common 
Icnv  system  of  descendance,  is  ambiguous  and  can  be  inferred  to  mean  that  federal  agencies  and/or 
museums  can  "choose"  to  recognize  or  not  recognize  tribal  law  regarding  traditional  kinship 
relationships  as  acknowledged  and  supported  by  the  governing  Indian  tribe  to  which  the  lineal 
descendant  is  a  enrolled  member  thereof 

(b)(2)  Indian  tribe  -  as  written,  this  clause  with  the  concluding  sentence:  The  Secretary  will  distribute 
a  list  of  Indian  tribes  for  the  purposes  of  carrying  out  this  statute  through  the  Departmental 
Consulting  Archeologist.  Implies  that  only  those  Indian  tribes  with  federal  recognition  are  eligible  for 
making  repatriation  claims  to  federal  agencies  and/or  museums.  The  phrase  in  the  proceeding 
sentence:  which  is  recognized  as  eligible  for  the  special  programs  and  services  provided  by  the 
United  States  to  Indians  because  of  their  status  as  Indians.  Is  ambiguous  towards  understanding  if, 
the  clause  is  referencing  Native  American  ethnic  groups  which  do  not  have  federal  recognition  as 
Indian  tribes 

(d)(1)  Human  remains  -  although  the  clause  appears  to  adequately  define  human  remains.  It  should 
incorporate  within  it's  language  a  statement  that  specifies  it  is  the  right  and  privilege  of  any  Indian 
tribe  to  define  within  the  context  of  it's  own  cultural  reckoning,  what  it  as  a  Indian  tribe,  considers 
a  human  remain  to  be  for  the  purposes  of  repatriation. 

(d)(3)  Sacred  objects  -  this  clause  needs  to  "specifically"  state. 

The  appropriate  Indian  tribe  seeking  to  repatriate  objects  from  a  federal  agency 
and/or  museum,  shall  be  the  sole  authority  to  identify  and  define  what  objects  in 
the  control  of  a  federal  agency  and/or  museum  are  "SACRED"  to  that  and  only 
that  particular  cultural  group  which  is  making  the  repatriation  request  The 
determination  of  what  object  is  and/or  «  not  considered  a  sacred  object  rests  solely 
and  exclusively  upon  the  decision  of  the  repatriating  Indian  tribe. 


236 


Secondly  as  written,  the  clause  hinders  the  repatriation  of  sacred  objects  by  Indian  tribes  because  of 
the  usage  of  the  words  -  specific  -  needed  -  contained  within  the  first  sentence  of  the  clause  Due  to 
the  diversity  of  how  different  and  shared  cultural  groups  worshiped  the  creator  where  the  individual 
belonging  to  the  cultural  group  was  allowed  to  acknowledge  and  supplicate  themselves  to  a  higher 
supernatural  authority  according  to  their  own  understanding  of  how  expressing  one's  spirituality 
should  be  undertaken  And  acknowledging  that  different  and  shared  cultural  groups  of  people  allowed 
for  the  establishment  of  male/female  Societies  that  were  also  allowed  to  acknowledge  and  supplicate 
themselves  to  a  higher  supernatural  authority  according  to  their  own  understanding  of  how  expressing 
one's  spirituality  should  be  undertaken.  This  clause  needs  to  acknowledge  this  occurrence  and  state 
that  within  the  different  and  shared  cultural  groups  where  such  activities  have  taken  place  but  may 
or  may  not  have  been  recorded  or  noted  within  the  historical  record  pertaining  to  Indian  tribes  and 
people,  consideration  of  such  real  occurrences  must  be  given  redress 

Through  the  incorporation  of  the  language  written  above  in  bold  and  italic  Such  wording  as 
has  been  provided  for  review  empowers  Indian  tribes  to  demonstrate  their  right  for  self-determination 
regarding  what  is  or  is  not  a  sacred  object  And  it  empowers  the  Indian  tribe  to  address  within  it's 
own  cultural  reckoning,  the  diversity  of  spiritual  expression  of  it's  membership 

(4)(e)  What  is  cultural  affiliation'  -  in  using  the  term,  "expert  opinion."  Expert  opinion  without 
definition  enables  non-Indians  to  seek  out,  authorize,  and  utilize  other  non-Indians  as  experts  who 
can  interpret  tribal  history  and  traditional  cultural  mores,  activities,  and  spiritual  beliefs  of  a  people 
to  whom  they  have  no  shared  ethnicity  with  The  term  must  either  be  dropped  from  the  clause,  or, 
it  must  be  defined  to  state  that  expert  opinion  means  Oral  testimony  of  traditional  tribal  ciders  of 
the  Indian  tribe  submitting  the  repatriation  request. 

Section  10.3  Intentional  archeological  excavations    * 

(b)(  1 )  Specific  Requirements  -  regarding  the  sentence 

Regarding  private  lands  within  the  exterior  boundaries  of  any  Indian  reservation,  the 
Bureau  of  Indian  Affairs  (BIA)  will  serve  as  the  issuing  agency  for  any  permits 
required  under  the  Act. 

It  needs  to  be  stated  that  Indian  tribes  as  governments  with  the  authority  to  regulate  activities  on  their 
reservations.  Have  the  right  to  assume  and/or  replace  the  regulatory  authority  of  the  Bureau  of  Indian 
Affairs  if  they  so  choose  too  do  so.  The  applicable  law  for  regulation  of  archeological  excavations 
undertaken  within  the  exterior  boundaries  of  a  Indian  reservation  is  tribal  law. 

Section  10.4  Inadvertent  discoveries 

This  section  as  in  Section  10.3  needs  to  state  that  within  the  boundaries  of  a  Indian  reservation  the 
applicable  law  regarding  the  regulation  of  managing  inadvertent  discoveries  is  tribal  law. 

Section  10.5  Consultation 


237 


(a)(1)  Consulting  parties  -  the  term  "aboriginal  lands"  in  the  sentence: 

from  Indian  tribes  on  whose  aboriginal  lands  the  planned  activity  will  occur  or 
where  the  inadvertent  discovery  has  been  made; 

This  sentence  needs  to  be  expanded  to  read  aboriginal  lands  as  defined  by  the  oral  history  of  the 
tribe  that  claims  occupation  and/or  interest  in  the  territory  where  -  the  planned  activity  will  occur 
or  where  the  inadvertent  discovery  has  been  made; 

(a)(3)  -  this  clause  is  ambiguous  and  it  does  not  explain  what  demonstrates  a  cultural  relationship  As 
written  the  clause  is  workable,  however,  unless  the  agent  seeking  tribal  consultation  has  prior 
knowledge  of  all  of  the  Indian  people  who  through  their  oral  tradition  claim  occupancy  or  interest 
in  the  lands  where  the  discovery  is  made  Indian  tribes  may  not  receive  proper  notice  of  discovery  and 
consultation  inquiry 

Section  10  6  Custody 

(a)(2)(iii)  -  this  clause  does  not  empower  Indian  tribes  to  invoke  "Oral  History"  as  a  method  of 
determining  what  is  considered  a  Indian  tribes  aboriginal  lands  as  they  are  defined  by  the  oral  history 
of  the  tribe  itself  To  address  this  clause  and  correct  the  oversight  the  following  phrase  needs 
inclusion  after,  as  the  aboriginal  land  of  an  Indian  tribe  and/or  where  the  Indian  tribe  has  within 
it's  oral  history,  references  where  this  territory  was  and  is  considered  a  part  of  it's  aboriginal 
lands: 

Section  10  7  Disposition  of  unclaimed  human  remains,  funerary  objects,  sacred  objects,  or  objects 
of  cultural  patrimony  [Reserved] 

It  is  inexcusable  that  this  section  of  regulation  has  not  been  promulgated  for  review  and  comment 
Regulations  for  this  section  need  to  be  publicly  proposed  and  commented  upon  by  Indian  tribes  and 
tribal  participation  in  the  development  of  this  regulation  must  be  mandated  upon  the  federal  agency 
charged  with  drafting  the  proposal  Tribal  participation  is  defined  as,  Indian  tribes  help  to  "write"  this 
section  and  not  just  submit  comments  for  review  upon  the  proposed  draft  of  the  language. 

Section  10.10  Repatriation 

(c)(1)  Exceptions  -  this  clause  as  written  does  not  specify  that  federal  agencies  and/or  museums  in 
control  of  human  remains,  funerary  objects,  sacred  objects,  or  objects  of  cultural  patrimony,  are 
prohibited  from  automatically  declaring  that  their  entire  collections  are  collections  of  "scientific 
study"  simply  because  they  would  desire  to  do  so  and  thus  prevent  any  repatriation  from  taking  place 
Secondly  the  clause  does  not  mandate  that  the  federal  agencies  and/or  museums  must  "prove"  to 
Indian  tribes  that  a  scientific  study  is  currently  being  conducted.  It  also  does  not  state  that  a  federal 
agency  and/or  museum  cannot  begin  a  study  simply  to  prevent  repatriation  from  taking  place.  And 
lastly,  the  clause  does  not  address  at  all  or  even  considers  that  Indian  tribes  and  their  members  often 


23-074    96-9 


238 


have  strict  spiritual  taboo's  that  prohibit  the  scientific  study  of  these  items  To  address  and  correct 
this  oversight,  language  needs  to  be  included  where  a  federal  agency  and/or  museum  is  mandated  to 
first  request  and  receive  tribal  permission  to  conduct  a  scientific  study  on  any  item  in  their  collection 
since  the  enactment  of  this  law. 

Section  10. 1 1  Disposition  of  culturally  unidentifiable  human  remains  [Reserved] 

It  is  inexcusable  that  this  section  of  regulation  has  not  been  promulgated  for  review  and  comment  as 
well  Regulations  for  this  section  need  to  be  publicly  proposed  and  commented  upon  by  Indian  tribes 
and  tribal  participation  in  the  development  of  this  regulation  must  be  mandated  upon  the  federal 
agency  charged  with  drafting  the  proposal.  Tribal  participation  is  defined  as,  Indian  tribes  help  to 
"write"  this  section  and  not  just  submit  comments  for  review  upon  the  proposed  draft  of  the  language 

Section  10.12  Civil  penalties  [Reserved! 

Once  more  it  is  inexcusable  that  this  section  of  regulation  has  not  been  promulgated  for  review  and 
comment  as  well.  Regulations  for  this  section  need  to  be  publicly  proposed  and  commented  upon  by 
Indian  tribes  and  tribal  participation  in  the  development  of  this  regulation  must  be  mandated  upon  the 
federal  agency  charged  with  drafting  the  proposal  Tribal  participation  is  defined  as,  Indian  tribes  help 
to  "write"  this  section  and  not  just  submit  comments  for  review  upon  the  proposed  draft  of  the 
language  Secondly  under  this  section,  the  rules  for  the  levying  of  civil  penalties  for  non-compliance 
by  a  federal  agency  and/or  museum  with  the  law  must  be  "strict"  "harsh"  and  "immediate"  No 
federal  agency  and/or  museum  that  is  discovered  to  be  in  non-compliance  with  law  cannot  escape  full 
prosecution  under  the  law 

Section  10.13  Future  applicability  [Reserved) 

Again,  it  is  inexcusable  that  this  section  of  regulation  has  not  been  promulgated  for  review  and 
comment.  Regulations  for  this  section  need  to  be  publicly  proposed  and  commented  upon  by  Indian 
tribes  and  tribal  participation  in  the  development  of  this  regulation  must  be  mandated  upon  the  federal 
agency  charged  with  drafting  the  proposal.  Tribal  participation  is  defined  as,  Indian  tribes  help  to 
"write"  this  section  and  not  just  submit  comments  for  review  upon  the  proposed  draft  of  the  language. 

Section  10.14  Lineal  descent  and  cultural  affiliation 

(b)  Criteria  for  determining  lineal  descent  -  the  applicable  law  in  this  criteria  is  tribal  law,  and  only 
tribal  law.  It  must  be  specifically  stated  that  all  Indian  tribes  have  the  right,  the  responsibility,  and  the 
duty  to  invoke  their  own  legal  definitions  of  determining  kinship  relationships  for  their  cultural  group. 
As  in  Section  10.2,  this  clause  as  written  does  not  "specify"  nor  "mandate"  that  the  applicable  legal 
law  to  determine  kinship  regarding  the  demonstration  of  Native  American  descendance  to  a  known 
Native  American  individual  should  be  the  "tribal  law"  of  the  appropriate  Indian  tribe  The  phrase;  or 
by  the  common  law  system  of  descendance,  is  ambiguous  and  can  be  inferred  to  mean  that  federal 
agencies  and/or  museums  can  "choose"  to  recognize  or  not  recognize  tribal  law  regarding  traditional 


239 


kinship  relationships  as  acknowledged  and  supported  by  the  governing  Indian  tribe  to  which  the  lineal 
descendant  is  a  enrolled  member  thereof 

(3)(e)  Evidence  -  using  the  phrase  "expert  opinion"  Expert  opinion  without  definition  enables  non- 
Indians  to  seek  out,  authorize,  and  utilize  other  non-Indians  as  experts  who  can  interpret  tribal  history 
and  traditional  cultural  mores,  activities,  and  spiritual  beliefs  of  a  people  to  whom  they  have  no  shared 
ethnicity  with  The  term  must  either  be  dropped  from  the  clause,  or,  it  must  be  defined  to  state  that 
expert  opinion  means:  Oral  testimony  of  traditional  tribal  elders  of  the  Indian  tribe  submitting  the 
repatriation  request 

Section  10.15  repatriation  limitations  and  remedies 

(b)  Failure  to  claim  where  no  repatriation  or  disposition  has  occurred.  [Reserved]  -  Once  again  we 
reiterate  that  regulations  for  this  section  need  to  be  publicly  proposed  and  commented  upon  by  Indian 
tribes  and  tribal  participation  in  the  development  of  this  regulation  must  be  mandated  upon  the  federal 
agency  charged  with  drafting  the  proposal  Tribal  participation  is  defined  as,  Indian  tribes  help  to 
"write"  this  section  and  not  just  submit  comments  for  review  upon  the  proposed  draft  of  the  language 

-  also  in  this  section  we  see  in  the  construction  in  the  first  sentence  where  the  words  repatriation  or 
disposition  have  been  put  together  That  it  appears  that  disposition  of  human  remains,  funerary 
objects,  sacred  objects,  or  objects  of  cultural  patrimony  has  became  a  condition  of  repatriation  and 
this  gives  the  impression  that  federal  agencies  and/or  museums  may  legally  refuse  to  repatriate  such 
items  unless  they  have  a  say  in  determining  how  the  disposition  of  such  items  are  handled  by  the 
Indian  tribe  This  cannot  be  allowed  to  stand  since  disposition  is  solely  within  the  provenance  of  the 
Indian  tribe  to  determine  Another  example  of  poor  judgement  in  sentence  construction  can  be  found 
in  (d)(  1  )(ii)  where  it  reads  disposition  of  or  control  over,  can  be  implied  to  mean  that  federal  agencies 
and/or  museums  can  prevent  repatriation  unless  they  have  a  determining  say  in  how  such  items  will 
be  handled  by  the  Indian  tribe 

Section  10  17  Dispute  resolution 

(a)  Formal  and  informal  resolutions  -  with  regards  to  the  phrase  with  respect  to  the  repatriation  and 
disposition  of,  we  once  more  point  out  that  disposition  as  read  within  this  sentence  has  become  a 
condition  of  repatriation  and  this  gives  the  impression  that  federal  agencies  and/or  museums  may 
legally  refuse  to  repatriate  such  items  unless  they  have  a  say  in  determining  how  the  disposition  of 
such  items  are  handled  by  the  Indian  tribe.  This  cannot  be  allowed  to  stand  since  disposition  is  solely 
within  the  provenance  of  the  Indian  tribe  to  determine. 


These  are  the  comments  submitted  for  the  record  by  the  Cheyenne  River  Sioux  Tribe  of  Indians  in 
the  State  of  South  Dakota  regarding  the  Final  Rule  43  CFR  Part  10,  the  Native  American  Graves 
Protection  and  Repatriation  Act. 


240 


jOHWOO*,. 


Yankton  SiowtTribe 


Box  248 

Marty.  SD  57361 
(605)  384-3804  /  384-3641 
FAX  (605)  384-5687 


December  18,  1995 


Senator  John  McCain,  Chair 
Senate  Committee  on  Indian  Affairs 
Russell  Senate  Office  Building 
Washington,  DC  20510 

Dear  Senator  McCain 

We  write  to  express  our  concerns  with  the  drafting  of  the  Native  American  Graves  Protection  and 
Repatriation  Act  (NAGPRA)  Regulations  as  published  in  the  Federal  Register  dated  December  4, 
1995  In  addition  we  make  three  requests  that  we  hope  will  serve  to  rectify  the  problems  encountered 
in  the  process 

First,  by  the  time  tribes/bands  receive  notification  or"  newly  proposed  rules,  and  that  we  have 
opportunity  to  comment,  the  deadline  is  nearly  upoi  us  It  leaves  very  little  room  for  tribal 
participation  Thus,  laws  originally  intended  to  protect  the  interests  of  tribes  become  shaped  by  the 
comments  of  non-Indians  In  the  case  of  NAGPRA,  the  museums/institutions  holding  Native 
American  remains  and  objects  have  shifted  the  Act  to  protect  their  interests  in  the  December  4,  Final 
Rule  (referenced  above)  As  a  result,  tribes  are  now  required  to  furnish  more  documentation  and 
proof  for  the  return  of  items  that  clearly  do  not  belong  in  institutions 

Please  consider  extending  the  committee's  December  20,  1995  deadline  for  further  comment  so  that 
more  tribes/bands  can  be  heard  Secondly,  we  ask  your  committee  to  declare  the  present  NAGPRA 
Regulations,  Final  P.ule,  to  be  invalid  in  order  for  tribes/bands  to  have  adequate  input  in  the  drafting 
of  the  final  regulations  Further,  in  the  future,  consider  that  tribes  need  to  receive  invitations  for 
comment  with  ample  time  to  prepare  and  forward  comments  to  the  committee  Thank  you  for  your 
time  and  attention 


Sincerely, 


oak 


-«-dA— 


Darrell  E  Drapeau,  Chairman 
Business  and  Claims  Committee 
Yankton  Sioux  Tribe 


OFFICERS: 

DARRELL  DRAPEAU 

BRIAN  DRAPEAUX 

ARTHUR  STANDING  CLOUD 

GEORGE  L.  COURNOYER,  SR. 


(Business  and  Claims  Committee  J S  T 


MEMBERS: 

AUDREY  COOKE 

WILLARD  BRUGUIER 

TONY  FISCHER 

ROBERT  ■PETE'  KEZENA 

.      MAXINE  ROUSE 


241 


U.S.  Department  of  Justice 

'^T*'  Office  of  Legislative  Affairs 


Office  of  the  Assistant  Attorney  General  Washington.  DC  20530 

January  30,  1996 

The  Honorable  John  McCain 

Chairman,  Senate  Committee  on  Indian  Affairs 

United  States  Senate 

Washington,  DC   20510 

Dear  Mr.  Chairman: 

This  responds  to  your  letter  of  November  30,  1995, 
concerning  the  Native  American  Graves  Protection  and  Repatriation 
Act  (NAGPRA) .   NAGPRA  and  the  Archeological  Resources  Protection 
Act  (ARPA)  provide  the  tools  to  deter  destruction  of  burial  sites 
and  archeological  and  cultural  resources,  resources  which 
constitute  an  irreplaceable  part  of  our  heritage.   The  protection 
of  historical  and  archaeological  resources  involves  more  than  the 
preservation  of  artifacts,  burial  sites,  battlefields,  and  other 
tangible  items.   These  statutes  protect  the  values,  beliefs, 
aspirations,  religious  practices,  and  identity  of  Indian  peoples 
and  of  this  Nation.   The  Department  of  Justice  is  committed  to 
providing  the  resources  and  training  necessary  for  vigorous 
enforcement  of  NAGPRA  and  ARPA. 

Your  letter  requests  specific  information  regarding  the 
Department's  policies,  guidelines,  training  activities,  and 
prosecutions  pursuant  to  the  portion  of  NAGPRA  codified  as  the 
Illegal  Trafficking  in  Native  American  Human  Remains  and  Cultural 
Items  Act,  18  U.S.C.  §  1170.   I  turn  now  to  those  questions. 

1)  What  policies  and  guidelines  have  been  issued  within  the 
Department  of  Justice  for  the  enforcement  of  18  U.S.C.  1170, 
Illegal  Trafficking  in  Native  American  Human  Remains  and  Cultural 
Items  Act? 

Federal  prosecution  pursuant  to  18  U.S.C.  1170,  as  well  as 
ARPA  and  other  criminal  provisions  which  can  be  used  to  prosecute 
archeological  resource  violations,  such  as  the  theft  of 
government  property  statute,  18  U.S.C.  641,  and  the  depredation 
of  government  property  statute,  18  U.S.C.  1361,  is  pursued  by  the 
United  States  Attorneys'  Offices.   Legal  assistance  is  provided 
by  attorneys  of  the  Executive  Office  for  U.S.  Attorneys  and  the 
Criminal  Division  of  the  Department,  if  such  assistance  is 
requested. 


242 


A  paramount  interest  of  the  Department  of  Justice  is 
ensuring  that  there  are  sufficient  Assistant  United  States 
Attorneys  located  throughout  the  country  who  are  versed  in  the 
various  technical  requirements  of  NAGPRA  and  other  statutes 
designed  to  protect  burial  sites  and  cultural  resources.   To  this 
end,  the  Criminal  Division,  in  conjunction  with  the  Department  of 
the  Interior's  Archeological  Assistance  Division  and  other 
members  of  the  Federal  Interagency  Archeological  Protection 
Working  Group,  have  prepared  a  two-volume  publication  entitled 
"Archeological  Resources  Protection:   Federal  Prosecution 
Sourcebook . " 

The  Sourcebook  has  been  distributed  to  all  94  United  States 
Attorneys  Offices.   In  addition,  the  Archeological  Assistance 
Division  has  distributed  the  Sourcebook  to  a  wide  variety  of 
agency  attorneys,  land  managers,  archaeologists,  criminal 
investigators,  and  Indian  tribal  leaders.   This  Sourcebook,  which 
is  supplemented  periodically,  is  a  valuable  training  tool  which 
educates  its  users  and  promotes  NAGPRA  and  ARPA  prosecutions. 

In  addition  the  Department  co-sponsors,  in  association  with 
the  Archeological  Assistance  Division,  an  annual  conference 
entitled  an  "Overview  of  Archeological  Protection  Law. "   This 
conference  has  provided  intensive  training  to  numerous  Assistant 
United  States  Attorneys  in  addition  to  a  number  of  agency 
personnel  and  other  individuals  involved  in  the  preservation  of 
our  rich  archeological  heritage. 

While  the  Department  has  issued  no  formal  policies  or 
guidelines,  the  Sourcebook  contains  some  materials  relating  to 
the  enforcement  of  18  U.S.C  1170. 


2)    What  is  the  approximate  number  of  reports  received  and 
investigations  made  of  alleged  violations  of  18  U.S.C.  1170? 

Historically,  almost  all  criminal  ARPA  and  NAGPRA  offenses 
have  been  investigated  by  agents  and  archaeologists  employed  by 
the  federal  agency  which  has  responsibility  over  the  land  on 
which  the  unlawful  excavation  and  removal  occurred,  with  the 
Federal  Bureau  of  Investigation  being  called  in  to  assist,  if 
requested,  where  no  federal  land  managing  agency  has 
jurisdiction.   The  Department  does  not  maintain  comprehensive 
records  of  the  number  of  investigations  under  18  U.S.C.  1170  by 
other  federal  agencies. 

Following  investigation  and  referral  to  the  Department, 
further  investigation  and  federal  prosecutior  is  pursued  by  the 
United  States  Attorneys'  Offices,  with  legal  assistance  provided, 
if  requested,  by  attorneys  of  the  Criminal  Division  of  the 
Department  of  Justice.   Since  the  enactment  of  NAGPRA  in  November 
1990,  the  Department  has  received  criminal  referrals  identifying 


243 


46  suspects  with  possible  violation  of  18  U.S.C.  1170.   Criminal 
charges  were  brought  against  13  of  the  suspects.    Ten  of  the 
suspects  are  still  under  investigation.   The  referrals  against 
the  23  remaining  suspects  were  closed  for  one  of  the  following 
reasons:   lack  of  evidence  or  criminal  intent;  weak  or 
insufficient  evidence;  suspect  to  be  prosecuted  by  another 
authority;  no  federal  offense  committed;  completion  of  pre-trial 
diversion;  suspect  cooperation;  and  guilty  plea  entered  in 
Magistrate  Court . 

3)  What  is  the  approximate  number  and  disposition  of  pending  and 
completed  cases  charged  under  section  1170  of  title  18? 

Since  the  enactment  of  NAGPRA  in  November  1990,  criminal 
charges  have  been  filed  against  13  defendants.   There  has  been  a 
final  disposition  of  nine  of  these  defendants.   Six  of  the 
defendants  entered  guilty  pleas,  two  were  dismissed  without 
prejudice,  and  one  dismissed  with  prejudice.   Cases  filed  against 
four  defendants  are  still  pending  in  federal  district  court. 

If  the  Department  can  be  of  further  assistance,  do  not 
hesitate  to  contact  my  office. 


Assistant  Attorney  General 


CC:      The  Honorable  Daniel  Inouye,  Vice  Chair 


'  All  numbers  contained  in  this  letter  are  based  on  Department 
records  as  of  September  30,  1995. 


244 


SMITHSONIAN    INSTITUTION 
Washington,  D.C.  20560 

rsA 


January  26,  1996 


Honorable  John  McCain 

Chairman 

Select  Committee  on  Indian  Affairs 

United  States  Senate 

Washington,  D.C.    20510 

Dear  Mr.  Chairman: 

As  a  follow  up  to  your  Oversight  hearing  on  the  Native 
American  Graves  Protection  and  Repatriation  Act  (NAGPRA)  and 
preliminary  discussions  with  the  Committee  staff,  I  would  like  to 
submit  some  materials  for  the  record. 

Enclosed  you  will  find  the  National  Museum  of  the  American 
Indian  Repatriation  Policy  and  the  National  Museum  of  Natural 
History  Repatriation  Guidelines,  both  of  which  establish  that  the 
Smithsonian  is  complying  with  the  spirit  of  NAGPRA  in  virtually 
every  respect . 

The  National  Museum  of  the  American  Indian  has  prepared  and 
distributed  the  combined  summaries  and  inventories  of  the  entire 
collection  to  all  federally  recognized  tribes.   The  first  mailing 
was  completed  in  November,  1993,  and  the  inventories  were 
supplemented  in  November,  1995  through  an  additional  mailing. 
Extensive  repatriation  activity  has  been  taking  place  also,  as 
you  can  see  from  the  information  submitted  with  this  letter. 

The  National  Museum  of  Natural  History  (NMNH),  has  adopted 
the  categories  of  objects  eligible  for  repatriation  and  certain 
procedures  and  definitions  contained  under  NAGPRA.   In  addition, 
the  Repatriation  Office  is  complying  fully  with  the  National 
Museum  of  the  American  Indian  Act  and  is  working  on  a  substantial 
repatriation  caseload.   With  respect  to  many  of  these  cases, 
tribes  have  been  given  timetables  for  completion  of  their 
respective  requests . 

Due  to  the  significant  volume  of  pending  repatriation 
requests,  the  staff  of  the  Repatriation  Office  has  devoted  its 
resources  to  completing  these  cases  and  repatriating  eligible 
materials.   These  cases  are  extremely  time-consuming,  and  we  are 
providing  you  with  a  sample  case  report,  which  illustrates  the 
time,  effort,  and  research  involved  with  each  repatriation 
request. 


245 


Senator  McCain 
Page  two 


Moreover,  because  the  National  Museum  of  the  American  Indian 
Act  deals  specifically  with  repatriation  and  does  not  prescribe 
deadlines  for  the  completion  of  an  inventory,  the  Museum's 
priority  has  been  on  the  former  and  not  the  latter.   Although  the 
Smithsonian  understands  the  importance  of  completing  an  inventory 
and  is  preparing  a  timetable  and  budget  plan  to  submit  for  the 
Committee's  consideration,  it  is  important  to  note  the 
difficulties  posed  by  limited  resources  of  maintaining  current 
agreements  and  timelines  with  tribal  repatriation  reguests  while 
concurrently  completing  an  accurate  inventory.   We  are  committed 
to  accomplishing  both  and  look  forward  to  working  with  you  on 
preparing  the  most  responsible  and  feasible  approach.   I  will  be 
back  to  you  shortly  with  a  schedule  for  completion  of  the 
inventory  and  a  budget  plan  within  existing  resources. 

Finally,  I  am  enclosing  a  letter  from  the  National  Museum  of 
Natural  History  which  clarifies  some  misconceptions  presented  by 
outside  witnesses  about  the  Smithsonian  and  its  collections.   I 
hope  this  information  will  be  helpful  as  the  Committee 
deliberates  on  the  implementation  of  the  NAGPRA  Act.   We  are 
ready  and  willing  to  offer  any  additional  assistance  that  you  may 
reguest  on  this  subject. 

Sincerely, 


I .    Michael    He&7P.an 
Secretary 


Enclosures 


246 

***** 

NATIONAL  MUSEUM  of 
NATURAL  HISTORY 

SMITHSONIAN     INSTITUTION 


January  22,  1996 

Honorable  John  McCain 

Chairman 

Select  Committee  on  Indian  Affairs 

United  States  Senate 

Washington,  DC.  20510 

Dear  Senator  McCain, 

This  letter  provides  additional  comments  for  the  record  on  the  repatriation  program  at  the 
National  Museum  of  Natural  History  (NMNH).  These  comments  follow  up  on  testimony  given 
during  the  recent  oversight  hearing  for  the  Native  American  Graves  Protection  and  Repatriation 
Act  (NAGPRA)  held  by  the  Select  Committee  on  Indian  Affairs.    Unfortunately,  the  Smithsonian 
was  not  included  in  the  witness  list  and  therefore  did  not  have  the  opportunity  to  provide 
information  or  expound  upon  the  many  accomplishments  the  Natural  History  Museum  has  made 
in  the  area  of  repatriation.  I  feel  it  is  important  to  make  the  Committee  aware  of  our  efforts  in 
repatriation  under  the  National  Museum  of  the  American  Indian  (NMAI)  Act.  I  would  like  to 
temper  comments  made  at  the  hearing  with  information  on  our  activities  and  accomplishments  to 
date. 

Since  1991  the  NMNH  has  provided  approximately  150  Native  American  and  Native 
Alaskan  groups  with  unverified  skeletal  and  object  inventories  either  requested  by  those  groups  or 
distributed  to  them  as  part  of  on-going  case  work  and  consultation.  The  term  unverified  indicates 
that  we  have  not  yet  completed  a  definitive  search  of  our  records  and  collections  to  determine  the 
accuracy  of  readily  available  catalog  information.  The  unverified  inventories  provide  a  starting 
place  for  further  consultation,  documentation,  and  collaboration  with  the  tribes  as  the  repatriation 
process  moves  forward.  In  the  case  of  Alaska,  for  example,  all  of  the  Regional  Native 
Corporations  and  many  of  the  Village  Native  Corporations  and  IRA  Councils  have  been  provided 
with  inventories  of  materials  related  to  their  areas.  With  inventory  notification  essentially 
complete,  our  case  work  in  Alaska  is  presently  focusing  on  returns,  collaborative  documentation, 
and  further  consultation  and  negotiation.   Significant  headway  has  been  made  with  the  distribution 
of  unverified  inventories  in  the  Plains  and  the  Northwest  regions  of  the  country.  The  Repatriation 
Office  also  is  accelerating  its  efforts  to  complete  similar  coverage  for  Native  groups  in  the 
Northeast,  the  Southeast,  the  Southwest  regions  of  the  country. 


'    I     l>    I   .      \    I    I     l>      TO      UNDERSTANDING       I    M    I       NATURAL      WORLD      AND      OUR      PLACE      IN      11 

WASH  INI,  I  ON  IX      J0560 


247 

Page  2 

More  than  30  verified  inventories  also  have  been  completed  and  distributed  to  Native 
groups  in  Alaska  and  the  lower  48  states  as  part  of  the  next  step  in  the  repatriation  process.  The 
verified  inventory  is  a  final,  definitive  report  for  groups  that  have  submitted  official  repatriation 
requests.  The  report  identifies  all  remains  and  funerary  objects  eligible  for  repatriation  and  makes 
recommendations  for  actual  returns.  I  am  submitting  for  your  review  a  recent  inventory  report  on 
the  Apache  and  Yavapai  Tribes  of  Arizona  which  is  typical  of  the  verified  inventory  reports  we 
are  producing.    The  verified  inventories  represent  completed  repatriation  cases  which  have 
resulted  in  the  return  of  approximately  1500  individuals  to  date    Another  1000  sets  of  remains 
also  have  been  identified  for  return  in  the  verified  inventory  process  and  are  now  awaiting 
repatriation.  In  sum,  more  than  30%  of  the  Native  groups  eligible  for  repatriation  in  the  United 
States  have  been  provided  with  basic  inventory  data  thus  far. 

It  is  particularly  important  to  note  that  our  repatriation  efforts  over  the  last  four  years 
have  not  focused  exclusively  on  inventory  and  notification.  Equally  important  to  the  repatriation 
initiative  at  Natural  History  has  been  a  serious  effort  to  engage  in  case  work,  complete  a  large 
number  of  returns,  address  long-standing  repatriation  requests,  and  carry  out  substantive 
consultations  on  repatriation  with  as  many  affected  groups  as  possible.  A  considerable  amount  of 
time  and  staff  effort  have  been  expended  on  completing  pending  requests  from  Native  groups, 
many  of  which  include  particularly  sensitive  remains  recovered  during  the  19th  and  20th  centuries 
A  total  of  80  requests  have  been  received  so  far  and  in-depth  consultations  have  been  completed 
with  most  of  these  groups.  The  thirty  cases  completed  to  date  have  resulted  in  the  return  of  both 
skeletal  remains  and  funerary  objects.  Requests  have  been  engaged  on  a  first  come,  first  serve 
basis  and  a  concerted  effort  has  been  made  to  clear  the  large  number  of  cases  with  remains  which 
are  closely  related  (genealogically)  to  living  people.  Many  of  these  cases  have  included  remains  in 
the  Army  Medical  Museum  collections  (remains  dating  primarily  from  military  actions  in  the  latter 
half  of  the  19th  century)  and  those  that  date  from  late  prehistoric  and  early  historic  archaeological 
sites. 

Policy  and  guidelines  for  repatriation  at  the  NMNH  have  been  widely  disseminated  as  part 
of  our  effort  to  provide  information  about  the  laws  and  process  of  repatriation    We  have  mailed 
our  policy  and  guidelines  statement  to  all  federally  recognized  tribes  as  well  as  a  large  number 
non-federally  recognized  Native  groups  (copy  of  guidelines  attached).  In  addition,  we  have 
carried  out  several  workshops  on  repatriation  for  Native  representatives  in  collaboration  with  the 
National  Museum  of  the  American  Indian,  the  Keepers  of  the  Treasures,  the  NMAI  and 
NAGPRA  Review  Committees,  and  the  National  Park  Service  as  well  as  local  tribal  councils  and 
cultural  organizations  (sample  agenda  and  registration  for  the  Mille  Lacs,  Minnesota  workshop 
attached).  Repatriation  staff  at  Natural  History  have  made  numerous  presentations  at  a  variety  of 
national  fora  including  the  NMAI  consultations,  the  Keepers  of  the  Treasures  meetings  (both 
regional  and  national,  Warm  Springs  Annual  Meeting  agenda  attached),  archaeological, 
anthropological,  and  museum  conferences,  as  well  as  the  NAGPRA  Review  Committee  hearings 
(in  Albany,  Los  Angeles,  etc.  [agenda  attached]).  We  have  also  presented  information  on  the  size 
and  character  of  our  collections  as  well  as  our  policies,  procedures,  and  completed  repatriations 
to  regional  Native  organizations  such  as  the  Elders  conferences  at  Point  Barrow  (agenda 
attached),  Point  Hope,  and  Nome,  Alaska,  the  Apache  Summit  in  Albuquerque,  New  Mexico, 
among  others.  We  have  collaborated  on  regional  consultations  with  the  Park  Service  and  a 


248 


number  of  private  museums  (see  attached  agendas  for  Southeast  Archaeological  Center  and 
Peabody  Museum  Tribal  Consultation)  in  order  to  move  our  case  work  forward  in  coordination 
with  other  federal  agencies  and  museums.  We  also  have  entered  into  cooperative  agreements 
with  a  number  of  federal  agencies  in  order  to  coordinate  documentation  efforts  whenever  possible 
(see  attached  example  of  MOU  with  the  Bureau  of  Reclamation)  and  to  reduce  the  total  number 
of  agencies  with  which  tribal  groups  are  required  to  interact.  Many  other  consultation  and 
outreach  activities  completed  by  the  Repatriation  Office  at  the  NMNH,  in  addition  to  regular  case 
work,  are  described  in  our  Annual  Reports  for  the  last  three  years  also  included  here  for  your 
review. 

Clearly,  both  our  strength  and  our  focus  to  date  has  been  to  act  on  pending  requests,  to 
complete  returns,  and  to  carry  out  individual  consultations  with  a  large  number  of  Native  groups. 
It  is  difficult  to  give  an  accurate  picture  of  the  amount  of  time  spent  by  our  Repatriation  Office 
staff  on  consultation  with  both  Native  groups  and  other  institutions  and  organizations.  Native 
delegations  visiting  Washington  on  business  unrelated  to  repatriation  regularly  stop  by  our  Office 
to  ask  about  repatriation  and  to  see  objects  or  remains  related  to  their  tribe.  Unannounced  as  well 
as  scheduled  visits  are  time  consuming  and  frequently  take  staff  away  from  planned  repatriation 
tasks.  Staff  also  frequently  consult  with  museum  professionals  seeking  information  on 
repatriation  procedures  and  other  issues.  We  consider  all  of  these  activities  to  be  necessary 
concomitants  of  the  Museum's  responsibility  as  a  national  leader  on  the  repatriation  mandate. 

As  part  of  its  overall  plan  the  repatriation  program  has  emphasized  case  work  with  the 
understanding  that  completed  cases  represent  a  final  response  to  the  inventory  and  consultation 
mandate  set  out  in  the  NMAI  Act.  Individual  cases  always  present  their  own  special  problems 
and  inevitably  become  more  complicated  and  protracted  than  originally  envisioned.  The  Pawnee 
repatriation  request  is  a  case  in  point.  Consultation,  negotiation  and  resolution  of  the  Pawnee 
request  for  the  return  of  skeletal  remains  from  Kansas  and  Nebraska,  dating  back  to  the  first 
millennium  AD,  have  taken  almost  four  years.  In  the  process,  however,  this  case  has  set 
precedents  for  the  treatment  of  unidentified  skeletal  remains  and  also  has  demonstrated  the 
effectiveness  of  our  Review  Committee  at  facilitating  the  resolution  of  disputes  and  protecting  the 
interests  of  Native  claimants  in  the  repatriation  process.  I  have  included  reports,  correspondence, 
and  the  final  judgement  of  the  Review  Committee  in  the  Pawnee  case  as  part  of  our  statement  for 
the  record. 

The  repatriation  effort  at  the  NMNH  also  has  attempted  to  shoulder  some  of  the  research 
and  financial  burdens  that  repatriation  inevitably  represents  for  the  tribes.  Unfortunately, 
appropriations  to  support  the  tribal  half  of  the  NMAI  repatriation  effort  have  never  materialized. 
Tribal  consultation  and  research  on  repatriation  requires  time,  expertise,  and  money.  The 
repatriation  program  has  sought  to  address  this  problem  in  a  number  of  different  ways.  First,  we 
seek  to  contract  with  Native  scholars  and  experts  on  repatriation  documentation  whenever 
possible.  To  date,  we  have  contracted  with  six  Native  experts  to  complete  documentation  on 
cases  unrelated  to  their  own  tribal  affiliation  totaling  almost  $150,000.  This  kind  of  Native 
American  participation  in  the  repatriation  process  represents  a  positive  approach  to  greater  Native 
American  involvement  in  the  future  of  the  Museum  and  a  long-term  remedy  to  the  problems  the 
legislation  originally  sought  to  redress. 


249 


Page  4 

We  also  support  travel,  lodging,  and  training  of  community  scholars,  Native  interns,  and 
official  Native  representatives  to  the  Smithsonian  and  to  conference  and  research  locations  in  the 
field  out  of  our  own  operating  budget.  All  of  this  support  is  related  to  on-going  repatriation  cases 
and  requires  significant  staff  involvement.  Community  scholars  come  to  Natural  History  for  up  to 
a  month  of  sponsored  research  and  work  directly  in  collaboration  with  repatriation  staff  on  their 
own  cases    Native  student  interns  spend  a  minimum  of  three  months  working  in  the  Repatriation 
Office,  learning  research  and  collections  management  skills,  and  participating  in  the  preparations 
for  returns.    We  also  arrange  for  and  fund  the  travel  of  Native  representatives  to  Washington,  DC 
to  recover  remains  and  objects  and  prepare  them,  often  ceremonially,  for  transport  home.  We 
have  coordinated  with  other  museums  in  the  organization  of  joint  repatriations  held  here  in  the 
capital  in  order  to  simplify  the  repatriation  process  for  the  tribes.  In  the  case  of  the  Pawnee 
repatriation  we  worked  closely  with  the  U.S.  military  to  cover  all  of  the  arrangements  for  the 
return  of  19th  century  Pawnee  combat  veterans  to  a  final  burial  location  in  Kansas.  Packing, 
transportation  arrangements,  and  costs  for  all  of  the  remains  returned  to  date  have  been  covered 
by  the  Repatriation  Office  at  NMNH. 

Recently  the  Repatriation  Review  Committee  also  has  begun  to  make  some  of  their  funds 
available  to  tribes  for  repatriation  consultation  and  research.  Native  representatives  come  to  the 
Museum  for  the  purpose  of  talking  about  the  repatriation  process  and  seeing  objects  and  human 
remains  in  the  collections  that  derive  from  their  tribe.  Travel  and  lodging  for  Native  repatriation 
representatives  comes  through  a  grant  program  evaluated  by  senior  Repatriation  Office  staff  and 
targeted  at  some  of  the  larger  official  requests.    We  estimate  total  funding  directed  to  supporting 
the  Native  side  of  repatriation  cases  at  NMNH,  excluding  the  Review  Committee  grants,  to  be  on 
the  order  of  about  $250,000.  This  figure  is  difficult  to  calculate,  especially  in  terms  of  the 
considerable  amount  of  staff  time  invested,  but  should  be  viewed  as  a  minimal  estimate.  Without 
a  doubt,  the  financial  costs  and  the  amount  of  time  spent  by  repatriation  staff  on  DC 
consultations,  other  visitor-related  activities,  and  returns  is  significant,  but  considering  the  long- 
term  benefit  to  both  the  Museum  and  Native  groups,  the  potential  benificial  outcome  more  than 
balances  the  investment. 

As  an  example  of  such  a  long-term  investment,  the  Repatriation  Office  has  begun  to 
investigate  technological  solutions  to  the  problems  and  costs  of  repatriation  consultation  and 
information  exchange  with  Native  groups.  Object  consultation  requires  face  to  face  discussions 
and  on-site  examination  of  artifacts  by  Native  experts  and  traditional  religious  leaders.  Long- 
distance travel  to  Washington  DC,  however,  is  sometimes  impossible  for  large  groups  or  for 
elders.  To  address  this  problem,  the  Repatriation  Office  at  NMNH  organized  an  object 
consultation  conducted  by  video  hookup  with  Tlingit  and  Haida  groups  in  Juneau,  Alaska.  All  of 
the  funding  for  the  video  conference  was  provided  by  outside  sources,  except  for  staff  time 
invested  in  this  project  by  the  Department  of  Anthropology  and  the  Repatriation  Office  at 
NMNH    The  project,  judged  to  be  a  success  by  all  involved,  represents  one  way  that  the  NMNH 
is  attempting  to  find  creative  solutions  to  the  challenges  represented  by  repatriation.  Sharing 
information  through  the  distribution  of  conventional  inventory  lists  often  represents  just  more 
bureaucratic  red  tape  to  the  tribes.  Reams  of  paper  do  little  to  help  them  identify  sacred  and 
patrimonial  objects  of  real  concern  to  traditional  people.  The  video  object  consultation  (short 


250 


Page  5 

note  in  Federal  Archaeology  on  the  conference  attached)  represents  one  way  we  have 
collaborated  with  Native  groups  to  seek  more  effective  and  meaningful  approaches  to  both 
communication  and  repatriation. 

In  conclusion,  I  hope  that  the  information  provided  here  creates  a  clearer  picture  of  the 
repatriation  program  at  Natural  History.    I  have  tied  to  put  the  work  we  do,  the  time  and  effort 
expended,  and  our  accomplishments  thus  far  in  context  with  the  general  issue  of  compliance  with 
NAGPRA.  The  bottom  line  is  that  we  feel  we  are  responding  aggressively  to  the  repatriation 
mandate    The  most  important  difference  between  repatriation  at  NMNH  and  at  other  museums 
responding  to  the  repatriation  mandate  are  the  deadlines  for  summaries  and  inventories  stipulated 
in  NAGPRA.  Many  of  the  larger  museums  have  requested  extensions  in  order  to  comply  with  the 
inventory  requirement.  We  believe  that  Natural  History  has  an  important  responsibility  to  act  as  a 
national  leader  in  repatriation  and  to  balance  our  inventory  responsibilities  with  meaningful 
consultations  and  actual  returns.  We  take  these  responsibilities  very  seriously.  This  approach  is 
certainly  time  consuming  but  we  believe  it  also  holds  the  potential  to  speed  the  overall  course  of 
repatriation  and  its  final  resolution.  Presently,  we  are  providing  both  inventories  and  summaries. 
We  are  also  making  a  concerted  effort  to  complete  a  large  number  of  repatriations  and  to  carry 
out  an  extensive  program  of  consultation,  outreach,  and  training  with  Native  groups.  We  want  to 
work  with  your  Committee  to  resolve  the  NAGPRA  compliance  issue  and  continue  the  successful 
process  of  repatriation  here  at  the  Museum.  In  this  spirit,  I  invite  the  members  of  the  Committee 
and  their  staff  to  come  to  the  Museum  and  see  first  hand  the  work  we  are  doing  in  repatriation. 
Please  contact  me  in  the  Department  of  Anthropology  at  NMNH  or  Dr.  Thomas  W.  Killion, 
Program  Manager  in  the  Repatriation  Office  should  the  Committee  require  any  additional 
information  on  repatriation  or  related  issues  at  the  Museum. 

Sincerely, 


Dr.  Dennis  Stanford,  Chai^ 
Department  of  i'withropology,  NMNH 
Smithsonian  Institution 


251 


National  Museum  of  the  American  Indian 

Smithsonian  Institution 

Repatriation  Office 


In  accordance  with  the  Native  American  Graves  Protection  and 
Repatriation  Act  (NAGPRA) ,  the  Repatriation  Office  has  submitted 
the  combined  summaries  and  inventories  of  the  NMAI  collection  to 
all  Federally  recognized  tribes.  The  first  mass  mailing  (sent  to 
743  tribes)  was  completed  in  November  1993.  The  second  mailing 
(sent  to  761  tribes) ,  consisting  of  5054  new  entries  in  the  NMAI 
database,  was  completed  later  than  the  legislated  date  of  November 
16,  1995  due  to  the  government  furlough.  This  mailing  was  completed 
on  November  29,  1995. 

According  to  Tim  McKeown,  the  NAGPRA  representative  for  the 
National  Park  Service,  NMAI  has  surpassed  the  summary  requirements 
of  the  first  mailing.  The  requirement  was  to  write  a  brief  letter 
describing  to  tribes  the  percentage  of  items  in  the  museum 
collection  that  originates  from  their  tribe.  However,  NMAI  sent  to 
each  Federally  recognized  tribe  a  detailed  inventory  of  every  item 
in  the  collection  (approximately  1  million  objects) ,  that 
originates  or  may  originate  from  that  tribe  (see  Lee  Callander's 
letter  for  an  example) . 

According  to  the  National  Park  Service,  NMAI  has  also  complied 
"in  the  spirit  of  the  law"  with  the  inventory  requirement  of  NAGPRA 
by  sending  the  above  description.  We  have  not,  however,  complied  to 
the  "letter  of  the  law"  regarding  the  timing  of  the  consultation 
visits  with  tribes.  According  to  the  legislation,  tribes  were  to  be 
consulted  about  the  contents  of  the  NMAI  collection  before  the 
inventories  were  sent  out.  There  are  two  reasons  this  was  not 
accomplished:  1)  The  NMAI  collection  is  too  large  and  covers  too 
broad  an  area  to  have  begun  a  verbal  dialogue  with  every  tribe  in 
the  two  years  between  sending  the  summaries/ inventories  and 
November  16,  1995.  2)  tribes  have  not  been  ready  to  begin  a 
dialogue.  In  order  to  try  to  comply  "in  good  faith",  NMAI  has 
invited  any  tribal  delegates  that  would  like  to  view  the  collection 
to  come  for  a  visit.  To  date,  the  majority  of  the  tribes  have  not 
pursued  this. 

NMAI  has  tried  to  make  repatriation  consultation  visits 
readily  available  (see  the  Repatriation  Annual  Report  1995,  p.  5) . 
Tribes  have  received  written  letters  inviting  them  to  come  to  the 
Research  Branch,  follow  up  calls  have  been  made  and  NMAI/NMNH 
Repatriation  Workshops  have  been  conducted  throughout  the  United 
States.  NMAI  also  offers  to  pay  for  one  round  trip  airfare  to  the 
museum  for  one  tribal  delegate  to  view  the  collection. 

NMAI  is  trying  to  go  beyond  the  boundaries  of  NAGPRA  in  taking 
the  initiative  of  researching  cultural  affiliation  and  repatriation 


252 


of  all  human  remains  in  the  NMAI  collection.  The  Repatriation 
Office  has  received  $170,000  of  Trust  money  to  hire  contractors  to 
research  the  cultural  affiliation  of  human  remains.  Once  a  research 
report  is  complete  NMAI  approaches  the  appropriate  Native 
community,  asking  them  to  take  their  remains  back  for  reburial .  The 
Repatriation  Office  pays  for  all  research  and  the  return  of  the 
remain (s),  but  not  for  reburial. 

The  human  remains  in  the  NMAI  collection  are  what  were 
considered  "curiosities"  that  Heye  kept  when  the  majority  of  the 
Physical  Anthropology  collection  was  transferred  over  to  the  New 
York  University  School  of  Dentistry  in  the  1940s.  What  remains  in 
the  collection  are  fragmented  bones  with  abnormalities  or  unusual 
circumstances,  such  as:  vertebrae  pierced  with  arrow  points,  skulls 
with  deformities  caused  by  disease,  disjointed  arm  bones  with 
bracelets  still  attached  and  mummies  from  the  Archaic  periods  in 
the  Southwest .  The  human  remains  in  this  collection  have  historic 
value,  but  are  not  what  any  scientist  would  call  a  "working 
collection" .  No  physical  testing  has  been  or  ever  will  be  carried 
out  on  any  human  remains  in  the  NMAI  collection. 


253 


SUMMARY  OF  NATIONAL  MUSEUM  OF  THE  AMERICAN  INDIAN 
POI ICY  STATEMENT  ON  NATIVE  AMERICAN  HUMAN  REMAINS  AND  CULTURAL  MATERIALS. 
ADOPTFD  BY  THE  BOARD  OF  TRUSTEES  ON  MARCH  4,  1991 

I.  PREAMBLE 

This  section  gives  background  on  the  establishment  of  the  National 
Museum  of  the  American  Indian  through  Public  Law  101-185,  which  provided  for 
the  transfer  to  the  Smithsonian  Institution  of  the  assets  of  the  Museum  of 
the  American  Indian,  Heye  Foundation  in  New  York.   It  describes  the  sole 
authority  of  the  National  Museum  of  the  American  Indian  board  of  trustees, 
subject  to  the  general  authority  of  the  Smithsonian's  board  of  regents,  to 
lend,  exchange,  sell  or  otherwise  dispose  of  any  part  of  the  collections  of 
the  museum. 

The  preamble  notes  that  this  pol icy  appl ies  to  the  repatriation  of 
Native  American  human  remains  and  funerary  objects;  repatriation  of  objects 
of  religious,  ceremonial  and  historical  importance  to  Native  American  people; 
communally  owned  tribal  property  and  other  property  acquired  by  or 
transferred  to  the  museum  illegally;  and  the  treatment  and  display  of  Native 
American  materials,.,. -..,.  ( •*•!■,»  ;-y  •  ■-.  ■  •  ■    .' 

One  of  the  museum's  highest  priorities  is  the  expeditious  implementation 
of  its  repatriation  policy.   It  further  establishes  the  general  goals  of  the 
museum  and  notes  that,  the  wishes  of  Native  Americans  must  be  respected  with 
regard  to  human  remains  and  funerary  objects  and  access  to  and  treatment  of 
ceremonial  and  religious  materials.   It  also  states  that  all:  Native  American 
materials,  which  have  been  determined  to  be  subject  to  repatriation,  must  be 
treated  as  the  sole  property  of  {.hei  affected  Native  American  culturally 
affiliated  group  and  must  be  treated  with  the  utmost  respect  by  scholars  and 
interpreters  of  those  cultures.        ■,  ■:,- 

II.  BACKGROUND 

This  section  explains  that  the  new  policy  extends  the  principles  set 
forth  in  Public  Law  101-185  with  respect  to  repatriation  of  human  remains  and 
associated  funerary  objects  to  other  categories  of  Native  American  objects-- 
ceremonial  and  religious  materials  and  communally  owned  Native  property.   It 
also  notes  that  each  repatriation  request  carries  with  it  unique  facts, 
circumstances  and  legal  and  ethical  cons:iderations. 

III.  POLICY 

This  section  describes  in  detail  the  policy  considerations  with  respect 
to  each  of  six  categories:   Human  Remains,  Funerary  Objects,  Communally  Owned 
Native  American  Property,  Ceremonial  and  Religious  Objects,  Objects  Acquired 
Illegally,  and  Duplicate  or  Abundant  Objects.  A  brief  summary  of  the  main 
point  of  each  category  is  summarized  below: 

Human  Remains--On  request  of  living  descendants  of  the  individual  or  the 
tribe  or  organization,  the  museum  will  repatriate  any  human  remains  that  are 
reasonably  identified  as  being  those  of  a  particular  individual  or  of  an 


254 


individual  culturally  affiliated  with  a  particular  American  Indian  tribe  or 
Native  American  organization. 

Funerary  Obiects--The  museum  will  repatriate  any  funerary  objects  associated 
with  human  remains,  including  any  funerary  object  that  is  a  surrogate  for  a 
deceased  person.   In  addition,  on  request,  the  museum  will  repatriate  to  a 
particular  American  Indian  tribe  or  Native  Hawaiian  organization  any  funerary 
object  that  1s  not  associated  with  human  remains  but  that  is  reasonably 
identified  as  having  been  removed  from  a  specific  burial  site  or  culturally 
affiliated  with  that  tribe  or  organization.  Also,  the  museum  will  repatriate 
any  other  funerary  objects  found  to  have  been  acquired  by  or  transferred  to 
the  museum  illegally  or  under  circumstances  that  render  invalid  its  claims  to 
them. 

Communally  Owned  Native  American  Property- -Communally  owned  property  that 
belongs  to  an  entire  tribe,  organization  or  group  or  was  held  for  communal 
purposes  and  could  not  have  been  legally  transferred  or  conveyed  by  any 
individual  Native  American  to  the  museum  will  be  repatriated  on  request. 

Ceremonial  and  Religious  Objects—This  category  includes  objects  needed  by 
Native  American  religious  leaders  for  the  practice  of  traditional  Native 
American  religions.  Because  of  the  wide  variety  of  objects  regarded  as 
ceremonial  and  religious,  each  request  will  be  considered  on  a  case-by-case 
basis  in  consultation  with  Native  religious  leaders  in  keeping  with  the 
American  Indian  Religious  Freedom  Act. 

Objects  Acquired  meqa11y--0n  request,  the  museum  will  repatriate  to  the 
appropriate  American  Indian  tribe,  Native  Hawaiian  organization  or  Native 
American  group  any  materials  acquired  or  transferred  to  the  museum  illegally 
or  under  circumstances  that  rendered  the  museum's  claim  invalid.  Each 
request  will  be  on  a  case-by-case  basis. 

Duplicate  or  Abundant  Obiects--The  museum  will  consider  requests  for 
repatriation  of  duplicate  or  abundant  items  held  in  the  museum's  collections 
from  Native  Americans,  American  Indian  tribes,  Native  Hawaiian  organizations 
or  Native  American  groups  culturally  affiliated  with  the  material. 

IV.   PROCEDURES 

This  section  notes  that  all  repatriation  decisions  will  be  made  by  the 
museum's  board  of  trustees  on  advice  of  its  collections  committee  and 
describes  a  procedure  for  carrying  out  an  inventory  and  for  consulting  with 
Native  Americans  during  the  repatriation  process.  Claims  for  materials  may 
be  submitted  by  descendants  and  by  those  who  can  demonstrate  a  cultural 
affiliation  to  the  materials.  This  group  of  claimants  includes,  but  is  not 
limited  to  Native  tribal,  religious,  ceremonial  and  Hawaiian  organizational 
leaders.  This  section  notes  that  the  initial  burden  of  proof  with  respect  to 
any  repatriation  request  is  on  the  requestor  to  establish  connection  to  the 
material  in  question. 

The  procedures  section  also  describes  the  special  review  committee  that 
will  make  recommendations  about  claims  in  dispute.  This  section  further 
notes  that  certain  items  in  the  museum's  collections  are  needed  by 


255 


traditional  Native  American  religious  leaders  for  the  practice  of  Native 
American  religions.  The  museum  is  committed  to  a  policy  of  repatriation  of 
these  and  other  cultural  materials.  Where  repatriation  is  not  requested  or 
where  a  repatriation  agreement  is  not  reached,  the  museum  is  committed  to  a 
policy  of  shared  access  and  use  of  these  materials  as  culturally  appropriate. 
The  museum  will  also  offer  technical  assistance  in  the  care,  preservation, 
use  and  disposition  of  materials  repatriated  to  tribes  and  organizations. 

V.  TREATMENT,  CARE  AND  EXHIBITION 

This  section  notes  that  the  museum  will  develop  and  adopt  a  collections 
management  policy  describing  detailed  procedures  for  accession,  deaccession, 
gifts,  exhibition,  display,  handling,  access  and  many  other  aspects  of 
collections  management.  That  policy  will  respect  and  accommodate  the 
cultural  and  religious  sensitivities  surrounding  the  museum's  collections. 
The  museum  will  develop  its  detailed  collections  procedures  in  accordance 
with  the  policy  that  culturally  specific  information,  data,  documentation, 
reproductions  and  depictions--whether  contained  or  transmitted  in  written, 
audio,  visual  or  computer  form--are  the  sole  property  of  the  affiliated 
group,  and  its  consent  regarding  treatment,  care  and  exhibition  of  its 
cultural  materials  must  be  obtained  prior  to  decisions  being  made. 

This  section  has  five  subsections  relating  to  Exhibition  and  Display, 
Curation,  Access,  Outreach  and  Acquisitions.  A  summary  of  the  main  points  of 
this  section  follows: 

Exhibition  and  Displav--Re1 jgious  and  ceremonial  objects  shall  be  exhibited 
or  displayed  only  with  the  consent  of  the  culturally  affiliated  group. 

Curation--Curat1on  and  care  of  cultural  materials  will  be  carried  out  using 
the  highest  standards  of  museum  practice  and  in  consultation  with  the  views 
of  appropriate  representatives  from  culturally  affiliated  groups. 

Access --Access  to  the  collections  for  viewing,  study,  performance  of 
ceremonies  and  for  other  purposes  of  Native  American  people  will  be  allowed 
to  the  maximum  extent.  Facilities  will  be  constructed  within  the  museum  and/ 
or  under  its  auspices  as  appropriate  for  the  purpose  of  conducting 
ceremonies.   Public  access  to  the  collections  for  research,  study  or  viewing 
purposes  may  be  restricted  if  such  access  offends  the  religious  or  cultural 
practices  of  Native  American  peoples. 

Outreach- -Loans  and  exchange  of  cultural  materials  and  traveling  exhibitions 
will  make  the  collections  more  widely  available  to  Indian  communities.  The 
museum  expresses  its  commitment  to  training  of  Native  Americans  and  use  of 
telecommunications  and  other  technology  to  make  its  collections  and 
activities  more  widely  available. 

Acguisitions--Title  to  all  objects  acquired  for  the  permanent  collections 
shall  be  obtained  free  and  clear.  This  section  describes  the  principles  to 
be  followed  in  acquiring  objects  for  the  collections. 


SI-121A-91 

a  a  tt 


256 


National  Museum  of  the  American  Indian  Policy  Statement 
on  Native  American  Human  Remains  and  Cultural  Materials 

I.  PREAMBLE 

In  November  1989,  the  National  Museum  of  the  American  Indian 
Act  became  law.   Public  Law  101-185  provided  for  the  transfer  to 
the  Smithsonian  Institution  of  title  to  the  assets  of  the  Museum 
of  the  American  Indian,  Heye  Foundation.   The  National  Museum  of 
the  American  Indian  (hereinafter  "Museum") ,  established  by  the 
Act,  has  a  Board  of  Trustees  which,  subject  to  the  general 
policies  of  the  Smithsonian  Board  of  Regents,  has  the  sole 
authority  to  lend,  exchange,  sell,  or  otherwise  dispose  of  any 
part  of  the  collections  of  the  Museum;  purchase,  accept,  borrow, 
or  otherwise  acquire  artifacts  and  other  objects  for  addition  to 
the  collections  of  the  Museum;  and  to  specify  criteria  for  use  of 
the  collections  of  the  Museum  for  appropriate  purposes,  including 
research,  evaluation,  education,  and  method  of  display.   Integral 
to  fulfillment  of  that  mandate  is  the  affirmation  that: 

*■  Native  American  cultures  and  the  collections  that  reflect 
those  American  Indian,  Alaska  Native  and  Native  Hawaiian  cultures 
provide  a  context  for  and  constitute  a  rich  part  of  the 
activities  of  the  Museum. 

*  The  goal  of  the  Museum's  repatriation  policy  is  to 
support  the  continuation  of  ceremonial  and  ritual  life  among 
Native  American  peoples,  to  foster  and  support  the  study  by 
Native  Americans  of  their  own  traditions,  and  to  forge  consensus 
among  the  Museum  and  Native  American  communities  while  accounting 
for  and  balancing  the  interests  of  each. 

*  The  wishes  of  Native  American  peoples  with  respect  to  the 
human  remains  and  funerary  objects  of  their  own  ancestors  must  be 
honored. 

*  The  wishes  of  Native  American  peoples  with  respect  to 
access  to  and  treatment  and  use  of  ceremonial  and  religious 
materials  needed  in  the  practice  of  their  religion  must  be 
granted. 

*  The  Native  American  community  must  have  broad  access  to 
and  use  of  information  pertaining  to  collection  materials  to 
ensure  that  informed  decisions  can  be  made  regarding  the 
treatment  and  disposition  of  Native  American  materials. 

*  All  Native  American  materials,  including  human  remains, 
funerary  objects,  ceremonial  and  religious  objects,  and 
communally-owned  property,  together  with  all  culturally-specific 
information,  must  be  treated  as  the  sole  property  of  the  affected 


257 


Native  American  culturally-affiliated  group  and  with  the  utmost 
respect  by  scholars  and  interpreters  of  those  cultures,  whether 
in  collections  research,  scientific  study,  exhibitions,  or 
educational  programs. 

*  Respect  for  Native  American  peoples  and  cultures  and 
principles  of  law  prohibit  the  retention  of  Native  American 
materials  that  were  acquired  by  or  transferred  to  the  National 
Museum  of  the  American  Indian  illegally  or  under  circumstances 
that  invalidate  the  Museum's  claim  to  them. 

*  The  Museum  has,  as  one  of  its  highest  priorities,  the 
expeditious  implementation  of  its  repatriation  policy.   To  carry 
out  this  policy,  there  must  be  continuous  dialogue  between  the 
Museum  and  Native  peoples  to  assure  that  all  viewpoints  and 
beliefs  are  considered  in  its  implementation. 

*  With  respect  to  Native  American  peoples  beyond  the 
borders  of  the  United  States,  this  policy  shall  be  carried  out  in 
accordance  with  the  following  procedures  and  applicable  treaties 
and  international  agreements. 

This  statement  describes  the  National  Museum  of  the  American 
Indian  policy  and  procedure  for:  (l)  the  repatriation  of  Native 
American  human  remains  and  funerary  objects;  (2)  the  repatriation 
of  objects  of  religious,  ceremonial,  and  historical  importance  to 
Native  American  peoples,  communally-owned  tribal  property,  and 
other  property  acquired  by  or  transferred  to  the  Museum 
illegally;  and  (3)  the  treatment  and  display  of  Native  American 
materials. 

II.  BACKGROUND 

Over  the  years,  a  set  of  principles  has  evolved  within 
federal  policy  regarding  Native  American  religious  freedom  and 
the  treatment  and  the  repatriation  of  cultural  materials. 
Certain  of  those  principles,  pertaining  to  human  remains  and 
funerary  objects,  were  codified  into  law  by  Public  Law  101-185. 
The  National  Museum  of  the  American  Indian  is  committed  to  a 
policy  that  extends  the  principles  of  the  law  to  other  categories 
of  Native  American  objects,  namely,  ceremonial  and  religious 
materials  and  communally-owned  Native  property. 

The  initial  focus  of  all  repatriation  requests  involves  the 
nature  of  the  material  in  question  and  the  circumstances  of  its 
acquisition  by  the  Museum.   Each  repatriation  request  carries 
with  it  unique  facts,  circumstances,  and  legal  and  ethical 
considerations.   Thus,  each  request  of  necessity  must  be  reviewed 
individually  within  the  Museum's  overall  policy  framework. 

III.  POLICY 

The  National  Museum  of  the  American  Indian  is  committed  to 
the  disposition,  in  accordance  with  the  wishes  of  culturally- 
based  Native  Americans,  of  (i)  Native  American  human  remains  of 


258 


known  individuals;  (ii)   human  remains  of  individuals  who  can  be 
identified  by  tribal  or  cultural  affiliation  with  contemporary 
Native  peoples;  (iii)  funerary  objects;  (iv)  communally-owned 
Native  property;  (v)  ceremonial  and  religious  objects;  and  (vi) 
objects  transferred  to  or  acquired  by,  or  hereafter  transferred 
or  acquired  by,  the  Museum  illegally  or  under  circumstances  that 
render  invalid  the  Museum's  claim  to  them.   Considerations 
associated  with  each  type  of  material  follow. 

A.  Human  remains.   The  Museum  will  repatriate  any  human 
remains  that  are  reasonably  identified  as  being  those  of  a 
particular  individual  or  of  an  individual  culturally  affiliated 
with  a  particular  American  Indian  tribe  or  Native  Hawaiian 
organization,  upon  request  of  living  descendants  of  the 
individual  or  of  the  particular  tribe  or  organization.   In 
addition,  the  Museum  will  repatriate  to  an  appropriate 
descendant,  tribe,  or  organization,  upon  request,  any  other 
Native  American  remains  found  to  have  been  transferred  to  the 
Museum  or  otherwise  acquired  by  the  Museum  illegally  or  under 
circumstances  that  render  invalid  its  claim  to  them.   Remains 
excavated  pursuant  to  lawfully— issued  permits  under  the 
Antiquities  Act  of  1906  will  be  deemed  to  have  been  acquired 
under  color  of  law,  but  will  be  subject  to  repatriation  if 
individually  or  tribally  identifiable. 

B.  Funerary  objects.   The  Museum  will  repatriate  any 
funerary  objects  associated  with  human  remains,  to  be  repatriated 
in  accordance,  with  paragraph  A  above,  including  any  funerary 
object  which  is  a  surrogate  for  a  deceased  person.   With  respect 
to  funerary  objects  not  associated  with  human  remains,  with  the 
exception  of  surrogates  addressed  above,  the  Museum  will 
repatriate  to  a  particular  American  Indian  tribe  or  Native 
Hawaiian  organization,  upon  request,  any  funerary  object  that  is 
reasonably  identified  as  having  been  removed  from  a  specific 
burial  site  or  culturally  affiliated  with  that  tribe  or 
organization.   In  addition,  the  Museum  will  repatriate  any  other 
funerary  objects  found  to  have  been  acquired  by  or  transferred  to 
the  Museum  illegally  or  under  circumstances  that  render  invalid 
its  claim  to  them. 

C.  Communally-owned  Native  American  property.   The  Museum 
recognizes  that  it  holds  in  its  collections  certain  objects  that 
are  communally-owned  property  of  an  American  Indian  tribe.  Native 
Hawaiian  organization,  or  Native  American  group  itself,  rather 
than  property  owned  by  an  individual  Native  American  person.   If 
such  property  belonged  to  the  entire  tribe,  organization,  or 
group,  or  was  held  for  communal  purposes  and  could  not  have  been 
legally  alienated,  transferred,  or  conveyed  by  any  individual 
Native  American,  the  Museum's  claim  to  it  is  invalid,  and  such 
items  will  be  repatriated  upon  request  according  to  procedures 
established  herein. 

D.  Ceremonial  and  Religious  Objects.   This  category  of 
materials  consists  of  objects  that  are  needed  by  Native  American 
religious  leaders  for  the  practice  of  traditional  Native  American 


259 


religions,  including  the  purpose  of  ceremonial  renewal.   Because 
objects  regarded  as  ceremonial  and  religious  by  any  given  tribe 
may  vary  substantially  from  the  objects  so  regarded  by  other 
tribes,  this  category  of  objects  does  not  lend  itself  to  a  fixed 
set  of  guidelines.   Thus,  in  keeping  with  the  American  Indian 
Religious  Freedom  Act,  each  request  must  be  considered  on  a 
case-by-case  basis  in  consultation  with  Kative  traditional 
religious  leaders  and  practitioners.   The  Museum  will  seek  the 
counsel  of  other  tribal  elders,  members  of  the  governing  bodies 
and  other  representatives  of  the  tribe  making  the  request,  and 
any  other  individuals  who  can  provide  relevant  information  to  the 
specific  request  at  hand. 

E.  Objects  acquired  illegally.   The  Museum  will  repatriate 
upon  request  to  an  appropriate  American  Indian  tribe,  Native 
Hawaiian  organization,  or  Native  American  group  any  materials 
acquired  by  or  transferred  to  the  Museum  illegally  or  under 
circumstances  that  render  invalid  the  Museum's  claim  to  them. 
Each  request  for  materials  so  acquired  will  be  considered  on  a 
case-by-case  basis  and  take  into  account  all  relevant  evidence 
submitted  by  the  particular  tribe,  organization,  or  group  and 
available  to  the  Museum. 

F.  Duplicate  or  Abundant  Objects.   When  the  Museum  has 
duplicate  material,  numerous  similar  objects  in  its  collection, 
or  an  abundance  of  a  certain  type  of  material,  arid  a  Native 
American,  American  Indian  tribe.  Native  Hawaiian  organization,  or 
Native  American  group  that  is  culturally  affiliated  with  the 
material  requests  its  repatriation,  the  Museum  will  consider 
disposition. 

IV.   PROCEDORES 

All  repatriation  decisions  are  made  by  the  Museum  Board  of 
Trustees  upon  advice  of  the  Collections  Committee. 

A.   Inventory.   The  policy  outlined  above  requires  the 
Museum  to  have  in  place  efficient  procedural  mechanisms  to 
respond  to  repatriation  requests.   The  National  Museum  of  the 
American  Indian  will  prepare  an  inventory  of  religious  and 
ceremonial  objects,  funerary  items,  and  all  other  cultural 
materials  covered  by  this  policy.   The  steps  of  such  inventories 
are  as  follows: 

1.  Using  the  best  available  scientific  and 
historical  information,  the  Museum  will 
identify  the  origin  of  human  remains, 
funerary  objects,  and  other  objects  covered 
by  this  policy. 

2.  Identification  will  be  based  on  a 
reasonable  belief  standard. 


260 


3.  The  inventories  will  be  made  available  to 
all  affected  American  Indian  tribes  and 
Hawaiian  Native  organizations  at  the  earliest 
opportunity . 

4.  The  Museum  will  include  in  its 
inventories  items  that  are  not  positively 
identifiable  as  being  associated  with  a 
particular  American  Indian  tribe  or  Native 
Hawaiian  organization  but,  given  the  totality 
of  information  about  the  materials,  make  it 
more  likely  than  not  that  the  item  once 
belonged  to  that  American  Indian  tribe  or 
Native  Hawaiian  organization   or  that  the 
human  remains  are  culturally  affiliated  with 
that  group. 

B.  consultation.   During  the  inventory  process  and 
following  its  completion,  the  Museum  will  consult  widely  with 
Native  American  peoples.   The  Museum  will  disclose  all  relevant 
information  pertaining  to  collection  objects  identified  in  the 
inventories,  and  curatorial  staff  will  be  available  to  respond  to 
additional  requests  for  information.   Physical  access  to 
materials  will  be  provided,  as  requested.   In  addition,  a  special 
area  will  be  made  available  for  Native  American  people  to  view  or 
otherwise  inspect  their  culturally  affiliated  materials.   Every 
effort  will  be  made  to  reach  agreement  through  informal 
consultation  and  cooperation.   Where  issues  remain  after  good 
faith  discussions,  those  pertaining  to  human  remains,  funerary 
objects  and  other  objects  covered  by  this  policy  will  be  referred 
to  a  Special  Review  Committee  established  by  the  Board  of 
Trustees. 

C.  Claimants.   Claims  for  materials  may  be  submitted  by 
descendants  and  by  those  who  can  demonstrate  a  cultural 
affiliation  to  the  materials.   This  group  of  claimants  includes, 
but  is  not  limited  to  Native  tribal,  religious,  ceremonial  and 
Hawaiian  organizational  leaders.   If  the  Museum  is  uncertain 
about  the  cultural  affiliation  of  the  party  requesting  the 
materials,  the  Museum  may  request  information  about  affiliation. 
If  a  request  is  made  by  one  Native  American  group  for  the  return 
of  materials  that  the  Museum  believes  may  be  more  closely 
affiliated  with  another  Native  American  group,  the  Museum  will 
advise  both  parties  of  the  request.   All  parties  with  a 
demonstrable  interest  will  be  invited  to  join  in  the  negotiation 
and  decision-making  process.   Where  competing  claims  exist  that 
cannot  be  resolved  through  informal  consultation,  the  parties 
will  submit  the  dispute  to  the  Board  of  Trustees. 

D.  Burden  of  Proof.   The  initial  burden  of  proof  with 
respect  to  any  repatriation  request  shall  be  on  the  requesting 
individual  or  tribe  to  establish,  on  a  reasonable  basis,  a 
connection  to  the  material  in  question.   This  connection  may  be 
lineal  descent,  tribal  affiliation,  and/or  cultural  affiliation. 
In  some  cases,  this  burden  can  be  satisfied  by  reference  to  the 


261 

Museum's  inventory  vhich  shall,  wherever  possible,  identify 
descent,  tribal  origin,  and/or  cultural  affiliation.   Where  the 
inventory  is  inconclusive  or  cannot  determine  affiliation,  the 
requesting  party  may  satisfy  its  burden  through  evidence  of 
geography,  descent,  kinship,  archaeology,  anthropology, 
linguistics,  folklore,  oral  tradition,  historical  patterns  of 
ownership  and/or  control,  and  any  other  relevant  information  or 
expert  opinion. 

For  human  remains  and  funerary  objects,  once  cultural 
affiliation  has  been  satisfactorily  established,  the  requesting 
party  has  met  its  burden  of  proof  and  the  material  shall  be 
repatriated  or  otherwise  disposed  of  in  accordance  with  the 
wishes  of  the  affiliated  individual  or  tribe. 

In  the  case  of  ceremonial  and  religious  materials,  the 
claimant  must  show  that  the  materials  are  needed  by  traditional 
Native  American  religious  leaders  for  the  practice  of  traditional 
Native  American  religions.   For  communally-owned  Native  property, 
the  requesting  party  must  show  that  the  material  has  an  ongoing 
historical,  traditional,  or  cultural  relevance  important  to  the 
Native  American  group  or  culture  itself,  rather  than  property 
owned  by  an  individual  Native  American,  and  which,  therefore, 
could  not  have  been  properly  alienated,  appropriated,  or  conveyed 
by  any  individual  at  the  time  the  object  was  separated  from  such 
group.   Once  the  claimant  has  satisfactorily  established  its 
case,  and  the  Board  of  Trustees  has  affirmed  its  claim,  the 
claimant  is  entitled  to  the  material. 

E.  Special  Review  Committee  on  Repatriation.   The  Board  of 
Trustees,  upon  being  notified  by  the  Museum  Director  or  the 
American  Indian  or  Native  Hawaiian  claimant  that  the  discussions 
concerning  repatriation  have  reached  in  impasse,  shall,  within 
fifteen  (15)  days,  constitute  a  Special  Review  committee  to 
review  the  nature  of  the  controversy,  to  examine  the  evidence 
presented  by  the  parties  in  dispute,  and  to  present  its  findings 
and  recommendations  to  the  Collections  committee  within  thirty 
(30)  days.   The  Collections  Committee  shall  then  review  the 
findings  and  recommendations  of  the  Special  Review  Committee  and 
shall,  within  fifteen  (15)  days,  submit  a  recommended  course  of 
action  to  the  Board  of  Trustees  for  its  consideration  in 
accordance  with  the  provisions  of  Public  Law  101-185,  Section 
5(C) (B),  Sole  Authority. 

F.  Access  and  Technical  Assistance.   The  Museum  recognizes 
that  certain  items  in  its  collections  are  needed  by  traditional   Y 
Native  American  religious  leaders  for  the  practice  of  Native 
American  religions.   The  Museum  is  committed  to  a  policy  of 
repatriation  of  these  and  other  cultural  materials.   Where 
repatriation  is  not  requested,  or  where  a  repatriation  agreement 
is  not  reached,  the  Museum  is  committed  to  a  policy  of  mutual  and 
Shared  access  and  use  of  these  materials,  as  culturally 
appropriate.   Access  and  use,  in  the  form  of  availability  of 


23-074  96-10 


262 


materials  for  examination  or  for  loan,  will  be  within  the  purview 
of  the  collections  management  policy  developed  by  the  Collections 
Committee. 

The  Museum  also  is  committed  to  a  policy  of  offering 
American  Indian  tribes  and  Native  Hawaiian  organizations  to  which 
materials  are  repatriated,  technical  assistance  in  the  care, 
preservation,  use,  and  disposition  of  materials.   Such  assistance 
may  encompass  advice  to  tribal  museums  and  training  programs, 
where  reguested.   Where  repatriated  materials  may  be  altered  or 
destroyed  because  of  their  sacred  or  traditional  nature  and 
function,  the  Museum  shall  obtain  permission  from  the  Native 
American  owners  prior  to  conducting  any  destructive  analysis  or 
documenting  the  existence  of  the  materials  through  reproduction 
or  graphic  representation. 

V.   TREATMENT,  CARE  AND  EXHIBITION   . 

The  National  Museum  of  the  American  Indian  will  develop  and 
adopt  a  collections  management  policy  that  describes  detailed 
procedures  for  accession,  deaccession,  gifts,  exhibition, 
display,  handling,  access,  and  many  other  aspects  of  collections 
management.   That  policy  must  respect  and  accommodate  the 
cultural  and  religious  sensitivities  surrounding  the  Museum's 
collections.   The  Museum  will  develop  its  detailed  collections 
procedures  in  accordance  with  the  policy  that  culturally-specific 
information,  data,  documentation,  reproduction  and  depictions — 
whether  contained  or  transmitted  in  written,  audio,  visual  cr 
computer  form — are  the  sole  property  of  the  affiliated  group,  and 
its  consent  regarding  treatment,  care  and  exhibition  of  its 
cultural  materials  must  be  obtained  prior  to  decisions  being 
made.   The  following  collections  management  principles  will  guide 
the  formulation  and  implementation  of  the  collections  management 
policy. 

A.  Exhibition  and  Display.   Religious  and  ceremonial 
objects  shall  be  exhibited  or  displayed  only  with  the  consent  of 
the  culturally-affiliated  group.   Before  displaying  religious, 
ceremonial,  or  potentially  sensitive  material  as  part  of 
exhibitions  or  public  programs,  curators  shall  consult  with 
interested  and  concerned  parties  and  shall  consider  and  be  guided 
by  their  views  in  determining  the  method  of  display.    Planning 
of  exhibitions — format  and  content — shall  be  done  in  consultation 
with  Native  American  representatives  of  the  tribe  and/or  culture 
involved  to  assure  historical  and  cultural  accuracy  in  the 
presentation  of  all  information  and  materials,  and  to  avoid 
desecration,  insensitive  treatment,  and  inappropriate 
interpretation  of  religious  or  ceremonial  materials. 

B.  Curat  ion.   Curation  and  care  of  cultural  materials  shall 
be  done  in  accordance  with  the  highest  standards  of  museum 
practices  and  in  consultation  with  the  views  of  appropriate 
representatives  from  culturally-affiliated  groups,  particularly 
where  culturally  and  religiously  sensitive  materials  are 
involved.   If  an  American  Indian  tribe.  Native  Hawaiian 


263 


organization,  or  Native  American  group  requests  that  the  Museum 
retain  custody  of  religious,  ceremonial,  communal ly-owned,  or 
other  tribal  property  eligible  for  repatriation,  they  shall 
inform  the  curator  and  other  appropriate  staff  regarding 
permissible  methods  of  handling,  care,  and  protection  of  such 
articles. 

.  C.   Access .   Access  to  the  collections  for  viewing,  study, 
the  performance  of  ceremonies,  and  for  other  purposes  of  Native 
American  people  shall  be  allowed  to  the  maximum  extent. 
Facilities  will  be  constructed  within  the  Museum  and/or  under  its 
auspices,  as  appropriate,  for  the  purpose  of  conducting 
ceremonies.   Public  access  to  the  collections  for  research, 
study,  or  viewing  purposes  may  be  restricted  if  such  access 
offends  the  religions  or  cultural  practices  of  Native  American 
peoples. 

D.  Outreach .   Education  constitutes  an  essential  purpose  of 
the  Museum.   Through  the  loan  and  exchange  of  cultural  materials 
and  travelling  exhibitions  the  Museum  will  endeavor  to  make  its 
collections  more  widely  available  to  Indian  communities  and  to 
present  contemporary  expressions  on  ?n  ongoing  basis.   Provisions 
shall  be  made  to  furnish  materials  and  information  to  Native 
people  through,  but  not  limited  to,  the  application  of 
telecommunications  and  other  technologies.   The  Museum  also  is 
committed  to  training  Native  American  people  in  museology  by 
developing  a  full  curriculum  of  programs  at  all  levels — senior 
management,  administration,  curatorial,  technical,  fellowships, 
support,  and  security. 

E.  Acquisitions.   Objects  will  not  be  acquired  by  gift, 
purchase,  or  exchange  unless  the  provenance  is  complete  and 
consistent  with  principles  of  law  and  policy  established  by  the 
Museum  and  the  Smithsonian  Board  of  Regents.   In  its  acquisition 
practices,  the  Museum  endorses  and  abides  by  the  principles  of 
the  UNESCO  Convention  and  the  American  Indian  Religious  Freedom 
Act.   The  Museum  will  consult  with  all  concerned  parties  before 
acquiring  materials  that  may  be  culturally  or  religiously 
sensitive.   Further,  the  Museum  will  not  accept  archeological 
materials  unless  they  have  been  excavated  in  compliance  with 
appropriate  international  agreements,  negotiated  tribal 
agreements,  federal  laws  and  guidelines,  and  such  other  state  and 
local  laws  as  may  be  applicable. 

Title  to  all  objects  acquired  for  the  permanent  collections 
shall  be  obtained  free  and  clear.   As  a  general  rule,  the  Museum 
must  not  accept  gifts  with  restrictions  as  to  use  or  future 
disposition.   The  Museum  may,  however,  permit  exceptions  to  this 
policy  for  materials  that  are  religiously  or  culturally  sensitive 
and  where  the  donor  imposes  restrictions  on  access,  display, 
research,  treatment,  storage,  or  care.   Under  exceptional 
circumstances,  and  with  approval  of  the  Board,  the  Director  may 
accept  objects  with  restrictions  or  limitations,  provided  that 
the  condition  shall  be  stated  clearly  in  the  instrument  of 
conveyance  and  made  a  part  of  the  records. 


264 


Whenever  an  item  of  cultural  property  covered  by  this  policy 
shall  be  offered  or  gifted  to  the  Museum,  or  whenever  it  shall 
come  to  the  attention  of  the  Museum  that  such  item  is  or  is  about 
to  be  placed  on  the  market  for  sale,  trade  or  exchange,  the 
Director  shall  notify  the  appropriate  American  Indian  tribe. 
Native  Hawaiian  organization,  or  Native  American  group  of  the 
known  circumstances.   To  the  extent  feasible,  and  upon  the 
request  of  the  culturally-affiliated  tribe  or  group,  the  Museum 
will  coordinate  efforts  with  the  tribe  or  group  to  recover  or 
obtain  a  treatment-and-care  agreement,  as  appropriate. 


265 


The  National  Museum  of  the  American  Indian 

Smithsonian  Institution, 

Repatriation  Office 

The  Repatriation  Office 
1995  Annual  Report 


Prepared  by  Sonya  Wolff 
October  1,  1995 


DRAFT 


266 


The  Repatriation  Office  (RO)  at  the  National  Museum  of  the 
American  Indian  (NMAI)  was  established  in  1990  in  accordance  with 
the  National  Museum  of  the  American  Indian  Act  (NMAIA) ,  20  U.S.C. 
Section  80q  (Public  Law  101-185)  .  The  NMAI  Act  requires  the 
Smithsonian  Institution  to  prepare  an  inventory  of  Native  American 
human  remains  and  funerary  objects  and  to  repatriate  such  material 
on  request  to  culturally  affiliated  Native  Americans.  The  Act 
authorizes  the  assembly  of  a  Board  of  Trustees  and  empowers  them  to 
write  policy.  The  Collections  Policy,  written  by  them  in  1992, 
contains  the  implementation  for  the  repatriation  of  sacred  objects 
and  items  of  cultural  patrimony.  The  NMAI  has  also  voluntarily 
adopted  the  principles  contained  in  the  Native  American  Graves 
Protection  and  Repatriation  Act  (NAGPRA) ,  25  U.S.C.  Section  3001 
(Public  Law  101-106) ,  for  the  inventory  and  repatriation  of  sacred 
objects  and  objects  of  cultural  patrimony. 

In  accordance  with  NAGPRA,  the  RO  has  submitted  the  combined 
summaries  and  inventories  of  the  NMAI  collection  to  all  Federally 
recognized  tribes.  This  mass  mailing  was  completed  in  November 
1993.  At  present,  a  second  mailing  is  being  organized  to  inform 
Native  American  groups  of  approximately  5,000  new  entries  in  the 
NMAI  database. 

This  1995  Annual  Report  of  the  Repatriation  Department  of  the 
National  Museum  of  the  American  Indian  reports  on  the  activities 
and  progress  of  the  department,  as  well  as  the  present  status  of 
research  through  the  end  of  the  1995  fiscal  year. 


I.    THE  NMAI  HUMAN  REMAINS  COLLECTION 

As  part  of  the  development  of  the  RO,  a  Human  Remains  Vault 
(HRV)  has  been  established,  and  all  human  remains  known  in  the 
collection  have  been  removed  from  general  storage  areas  and  are  now 
housed  in  the  HRV. 

The  NMAI  collection  records  contain  534  catalogue  entries  for 
human  remains  (HRs)1.  Some  of  these  catalogued  remains  are  no 
longer  in  the  collection,  some  have  been  deaccessioned  for 
repatriation  or  for  other  reasons2.   Currently,  there  are  268  human 


1  This  is  the  total  number  of  catalogued  human  remains  entries . 
Some  catalogue  numbers  include  more  than  one  remain;  these  remains 
are  considered  one  unit  or  project. 

2Seventy- three  of  these  entries  are  for  HRs  that  are  no  longer 
in  the  collection  (this  includes  36  LOWs)  .  The  NMAI  Board  of 
Trustees  has  deaccessioned  193  catalogue  entries  from  the  museum 


267 


remains  catalogue  entries  in  the  collection.    These  catalogue 
entries  have  been  grouped  into  104  various-sized  projects  (mainly 
by  geographic   location  or  by   collector)   to   facilitate   the 
completion  of  the  research  reports3. 

Table  I   Summary  of  Human  Remains  Catalogue  Numbers  (HRCN)  and 
Reports 

Total  number  of  HRCN  cataloged  in  database:  534 

Total  number  of  HRCN  present  in  the  HRV:  329 

(includes  those  already  deaccessioned) 

Total  number  of  HRCN  left  to  deacession:  268 

Total  number  of  HRCN  no  longer  in  collection:  266 

Inventory  LOW  3  6 

Exchanged  10 

Removed  12 

Discarded  01 

Transferred  13 

Presented  01 

Deacessioned  193 

Total  number  of  HRCN  repatriated:  132 

Total  number  of  HRCN  cataloged  as  medicine  to  date:      73 

Total  number  of  research  reports  (projects)  needed:      98 


Currently,  there  are  a  total  of  73  medicine  bundles  containing 
HRs  in  the  collection.  Human  remains  which  are  part  of  medicine 
bundles  are  considered  to  be  bundles  rather  than  HRs.  It  was 
decided  by  the  NMAI  staff  and  the  Traditional  Care  Committee  that 
medicine  bundles  containing  HRs  will  not  be  rehoused  to  the  Human 
Remains  Vault,  but  will  remain  in  their  current  location  until  they 
are  repatriated  or  the  Repatriation  Office  is  instructed  otherwise. 


collection.    Of  the  deaccessioned  collections,   132  have  been 
repatriated. 

3  "Repatriation:  The  Status  of  Human  Remains  Research"  by 
Wolff,  Sonya  F.,  and  Kathleen  E.  Ash-Milby,  Department  of 
Repatriation,  1995.   (Also  referred  to  as  the  "Scope  Report") . 


268 


II.   THE  REPATRIATION  OFFICE:  RESEARCH 

For  the  last  year,  the  primary  focus  of  the  research  section 
of  the  RO  has  been  to  organize  and  prioritize  the  repatriation  of 
HRs  in  the  collections  of  the  NMAI .  To  date  all  known  HRs  in  the 
collection  have  been  rehoused  in  the  Human  Remains  Vault;  the  Human 
Remains  Database  has  been  updated;  a  Scope  Report  was  prepared 
detailing  the  status  of  all  remains  still  present  in  the 
collection;  three  new  researchers  were  hired  and  the  whole  research 
process  was  put  into  full  swing. 

The  Human  Remains  Database  is  maintained  on  a  Q&A  program  and 
includes  records  of  all  known  HRs  in  the  NMAI  collection.  This 
database  is  an  adaptation  of  the  Registration  database  and  was 
completed  in  the  Fall  of  1993.  Since  then,  entries  for  HRs  found 
in  the  collection  have  been  added  to  the  database.  Through  the 
updating  process,  several  Registration  problems  have  been  resolved, 
remains  have  been  located  through  shelf -searches,  and  all 
unidentified  bones  in  the  collection  have  been  identified  by  a 
physical  anthropologist. 

In  November  1994,  scholarly  procedures  were  established  for 
research  reports  on  HRs  and  sacred  items  subject  to  repatriation. 
Since  that  time  ten  repatriation  reports  have  been  written.  Four  of 
these  reports  have  been  approved  by  the  Collections  Committee  (a 
delegation  of  the  Board  of  Trustees)  and  the  objects  deaccessioned. 
Four  reports  are  awaiting  review  by  the  Collections  Committee 
(these  reports  are  discussed  in  more  detail  below)  and  two  have 
just  be  completed.  Of  these  ten  reports  there  have  been  two  reports 
on  sacred  items,  including  the  Blackfeet  Thunder  pipe,  and  the 
Iroquois  Wampum  Belts.  Both  are  awaiting  review  by  the  Collections 
Committee  in  October. 

Table  II  Repatriation  Reports 

Total  number  of  repatriation  reports  completed:  10 

Number  of  repatriation  reports  reviewed  by  the 

Board  of  Trustees:  4 

Number  of  repatriation  reports  awaiting  review  by 

the  Board  of  Trustees:  4 

Number  of  repatriation  reports  on  HRs:  8 

Number  of  repatriation  reports  on  sacred  items:  2 


269 


Since  1989,  the  RO  has  received  eight  formal  repatriation 
requests  from  Native  groups.  Three  requests  have  been  for 
ceremonial  items:  The  Blackfeet  have  requested  the  return  of  a 
Thunder  Pipe;  the  Iroquois  have  requested  Wampum  Belts  and  False 
Face  Masks;  and  the  Omaha  have  requested  a  White  Buffalo  Hide  and 
a  Pipe.  Three  requests  by  the  Cheyenne  River  Sioux,  the  Crow  and 
the  Cherokee  Nation  have  been  for  human  remains.  Two  tribes,  the 
Hopi  and  the  Menominee,  have  asked  for  all  affiliated  materials  in 
the  NMAI  collection  and  have  declared  intellectual  property  rights 
over  all  information  related  to  their  tribes. 


Table  III   Repatriation  Requests  Since  1989 


Requestor 
Blackfeet 
Iroquois 

Omaha 

Cheyenne  River  Sioux 

Crow 

Cherokee 

Hopi 

Menominee 


Items  Requested 

Thunder  Pipe 

Wampum 

False  Face  Masks 


Type  of  Items 

Sacred/Ceremonial 

Sacred/Ceremonial 
Sacred/Ceremonial 


White  Buffalo  Hide 

Human  Remains 

Human  Remains 

Human  Remains 

All  affiliated  materials 

All  affiliated  materials 


Sacred/Ceremonial 


III.  RECENT  FUNDING  FOR  REPATRIATION  RESEARCH 

In  the  winter  of  1995,  the  Repatriation  Office  was  awarded 
$170,000  of  Trust  money  by  the  Board  of  Trustees  to  increase  the 
staff  and  hasten  the  repatriation  of  HRs .  The  two  researchers, 
Patrick  Tafoya  and  Chris  Fragnito,  both  of  Indian  decent,  have  been 
hired  on  two  year  contracts  at  $25,025  per  year:  two  years  for  both 
researchers  totals  $100,100.  The  remaining  $69,900  will  be  used  to 
hire  regional  scholars  to  conduct  research  on  an  "as  needed"  basis. 

Toward  this  goal,  Mr.  Marty  Sullivan,  Director  of  the  Heard 
Museum  in  Arizona,  was  hired  to  research  the  Wampum  Belt  request  by 
the  Iroquois.  Mr.  Sullivan  was  paid  $4,125  for  his  final  report 
which  is  presently  up  for  final  review  by  the  Board  of  Trustees. 


270 


In  addition,  the  RO  is  negotiating  a  contract  with  Karen 
Kramer  for  research  reports  for  Southwest  HRs  in  the  collection. 
Karen  Kramer  is  an  established  archaeologist  and  a  Ph.D.  student  at 
the  University  of  New  Mexico.  In  1994,  Kramer  completed  extensive 
preliminary  research  on  a  large  portion  of  the  HRs  from  the 
Southwest  during  an  internship  at  the  Repatriation  Office  and  is  in 
good  standing  at  NMAI .  If  negotiations  are  successful  she  will 
develop  the  preliminary  reports  into  finished  scholarly  ones. 


IV.   REPATRIATION  OUTREACH 

Since  the  RO  was  established  there  have  been  a  total  of  29 
repatriation  consultation  visits.  The  Native  American  groups  are 
listed  in  the  table  below: 


Table  IV   Repatriation  Consultation  Visits  to  the  National  Museum 
of  the  American  Indian 


1. 

Osage 

2. 

Jemez  Pueblo 

3. 

Iroquois 

4. 

Zuni 

5. 

Blackfeet 

6  . 

Poundmaker  Cree 

7. 

San  Carlos  Apache 

8. 

Eastern  Shawnee 

9. 

Absentee  Shawnee 

10. 

Menominee  of  WI 

11. 

Skokomish 

12. 

Navajo  Nation 

13. 

Nez  Perce 

14  . 

Yakima 

15. 

Oneida  of  NY 

16. 

Coyote  Valley  Porno 

17. 

Hualapai 

18. 

Oneida  of  WI 

19. 

Gila  River 

20. 

Jicarilla  Apache 

21. 

Hopi 

22. 

Tulalip 

23  . 

Kaw 

24. 

Squaxin 

25. 

Standing  Rock  Sioux 

26. 

Hoopa  Valley 

27. 

Saginaw  Chippewa . 

January  19  93 
October  1993 
November  19  93 
March  1994 
September  1994 
November  19  94 
December  1994 
December  1994 
December  1994 
January  19  9  5 
February  1995 
February  19  95 
March  1995 
March  1995 
March  19  95 
April  1995 
May  1995 
May  1995 
June  1995 
June  1995 
July  1995 
July  1995 
July  1995 
July  1995 
July  1995 
August  1995 
August  1995 


271 


Since  1989,  the  RO  has  received  eight  formal  repatriation 
requests  from  Native  groups.  Three  requests  have  been  for 
ceremonial  items :  The  Blackf eet  have  requested  the  return  of  a 
Thunder  Pipe;  the  Iroquois  have  requested  Wampum  Belts  and  False 
Face  Masks;  and  the  Omaha  have  requested  a  White  Buffalo  Hide  and 
a  Pipe.  Three  requests  by  the  Cheyenne  River  Sioux,  the  Crow  and 
the  Cherokee  Nation  have  been  for  human  remains.  Two  tribes,  the 
Hopi  and  the  Menominee,  have  asked  for  all  affiliated  materials  in 
the  NMAI  collection  and  have  declared  intellectual  property  rights 
over  all  information  related  to  their  tribes. 

During  September  and  October  1995,  repatriation  consultations 
were  not  scheduled  due  to  the  temporary  inaccessibility  of  the 
photographic  and  paper  archives.  In  November,  when  the  archives 
reopen,  the  consultations  will  resume  with  visits  by  the  Kutenai 
and  the  Hoonah . 

The  Repatriation  Office  is  continuing  outreach  efforts  with 
Native  American  communities.  Twice  a  year  the  RO  co-sponsors  a 
workshop  on  repatriation  with  the  National  Museum  of  Natural 
History  .  These  workshops  take  place  on  tribal  lands  and  are  open 
to  any  regional  Indian  group  that  would  like  to  attend.  However, 
the  workshops  are  targeted  toward  tribes  that  are  coping  with 
repatriation  issues.  The  main  objectives  of  the  workshops  are  to 
allow  NMAI  to  initiate  contact  with  Native  representatives  and  to 
educate  both  Native  Groups  and  the  museums  on  repatriation  issues 
within  specific  regional  areas.  The  February  1995  workshop,  held 
in  Palm  Springs,  California,  was  sponsored  by  the  Agua  Caliente 
Cultural  Museum.  The  second  workshop  was  held  in  September  1995  at 
the  Mille  Lacs  Indian  Reservation  in  Mille  Lacs,  Minnesota. 


V.    REPATRIATION  OFFICE  STAFF 

At  present,  the  Repatriation  Office  consists  of  only  two  staff 
members:  Sonya  Wolff  and  Karen  Brockman.  A  search  is  currently 
underway  for  a  Repatriation  Manager  under  a  Schedule  A  structure. 
The  Administrative  Assistant  position  has  recently  been  vacated. 
Patrick  Tafoya  and  Christopher  Fragnito  are  contracted  researchers 
hired  on  a  two-year  basis  and  are  paid  with  Trust  money. 

Sonya  Wolff.  Research  Assistant  GS  9,  2 -year  term  appointment. 
Sonya  has  an  MA  in  Archaeology  from  Cornell  University.  She  began 
working  on  October  11,  1994  under  the  supervision  of  Ray  Gonyea . 
She  was  hired  as  a  researcher  to  help  facilitate  the  return  of  HRs 


4  Alice  Sadongi  from  the  Public  Programs  Department  coordinates 
and  orchestrates  the  Repatriation  Workshops.  Without  her  help  these 
workshops  would  not  be  possible. 


272 


in  the  NMAI  collection.  At  present  she  is  acting  as  the  assistant 
to  the  Acting  Repatriation  Manager,  presently  George  Horse  Capture. 

Karen  Brockman.  Research  Assistant  GS  7,  2 -year  term 
appointment,  Oneida.  Karen  has  an  MA  in  Anthropology  from  the 
University  of  Colorado  and  a  Museum  Studies  Certificate  from  George 
Washington  University.  She  is  the  most  recent  addition  to  the 
Repatriation  Office  and  began  work  on  September  5.  She  is  primarily 
working  on  research  reports  for  the  return  of  HRs,  but  will  also 
work  on  tribal  consultation  visits.  In  addition  she  will  help 
fulfill  the  duties  of  the  Administrative  Assistant  until  a 
replacement  is  hired. 

Patrick  Tafoya.  One-year  Contract  Researcher  (equivalent  to 
a  GS  7)  ,  Navajo.  Patrick  has  an  MA  in  Divinity  from  Harvard 
University.  He  is  a  contract  researcher  hired  to  research  projects 
related  to  HRs  in  the  collection. 

Christopher  Fragnito.  One-year  Contract  Researcher 
(equivalent  to  a  GS  7),  Mohawk  from  Canada.  Christopher  has  a  BA 
in  History  and  English  from  Concordia  University.  He  is  a  contract 
researcher  hired  to  research  projects  related  to  HRs  in  the 
collection.   He  will  be  starting  work  on  October  16,  1995. 


IV.   SUMMARY  OF  CASES 

During  1995,  two  repatriations  (for  HRs)  have  taken  place,  and 
13  projects  (for  HRs  and  sacred  objects)  have  been  started  and  are 
at  various  stages  of  completion.  Detailed  descriptions  of  these 
projects  follow  below. 

Cases  Completed  and  Repatriated  in  1995 

1.  Diegueno.  In  the  fall  of  1995,  77  human  remains  and  associated 
funerary  objects  were  repatriated  to  three  bands  of  the  Diegueno 
Indians  of  Southern  California.  The  three  bands  include  the  Vie j as 
Band  of  Mission  Indians,  the  Santa  Ysabel  Mission  Indians  and  the 
Mesa  Grande  Band  of  Mission  Indians.  The  collection  was  acquired 
from  E.  H.  Davis  in  the  early  1900s. 

2.  Shuar  Achuar.  This  report  was  completed  by  Assistant  Curator 
Nancy  Rosoff.  All  remains  were  deaccessioned  by  the  Board  of 
Trustees  in  the  Spring  of  1995.  Ms.  Rosoff  and  the  Repatriation 
Office  consulted  with  the  Shuar  Federation  concerning  the  return  of 
the  12  Tsantsas  (shrunken  heads) .  They  were  returned  on  October  6, 
1995,  with  the  assistance  of  a  member  of  the  Shuar  Federation  while 
visiting  the  United  States  for  the  Indigenous  Leaders  Conference. 


273 


Human  Remains  Deaccessioned 

1.  Burr's  Hill.  This  report  was  completed  by  Assistant  Curator 
Eulalie  Bonar.  The  Board  deaccessioned  the  remains  in  the  spring  of 
1995.  The  remains  are  affiliated  with  the  Wampanoag  Tribe  of  Rhode 
Island,  however,  there  are  several  situations  which  have  delayed 
their  repatriation.  The  first  difficulty  is  that  the  majority  of 
the  Wampanoag  Tribes  are  only  state  recognized.  There  is  one 
Federally  recognized  Wampanoag  group,  but  they  do  not  have  any 
interest  in  the  Burr's  Hill  material.  Secondly,  there  are  multiple 
claims  for  the  Burr's  Hill  material  including  a  claim  by  the 
Federally  recognized  Narragansett  Tribe.  The  RO  is  in  the  process 
of  exploring  the  situation  with  the  Wampanoag  Nation  of  Rhode 
Island. 

2.  Oneida.  This  report  was  completed  by  Assistant  Curator  Cecil 
Ganteaume .  The  remains  were  deaccessioned  by  the  Board  in  the 
spring  of  1995.  At  present  there  are  internal  political 
complications  among  the  Oneida  of  New  York,  so  the  Board  has 
decided  to  hold  them  until  the  next  Board  meeting  in  October  1995. 
The  RO  is  awaiting  the  decision  of  the  Board  of  Trustees. 


Human  Remains  Reports  in  Progress 

1.  Alabama- -Charlotte  Thompson  Place.  This  report  was  completed  by 
Patrick  Tafoya  and  will  be  reviewed  by  the  Collection  Committee. 
The  report  covers  one  remain  collected  by  C.  B.  Moore  from  an  area 
known  as  Charlotte  Thompson  Place  in  Alabama.  There  are  no 
associated  funerary  objects.  The  cultural  affiliation  is  difficult 
to  assess,  however,  based  on  the  historical  background  of  the  area 
it  has  been  determined  that  the  remain  is  probably  affiliated  with 
the  Choctaw  Indian  people.  It  is  Mr.  Tafoya 's  recommendation  to 
return  the  HRs  to  the  Choctaw  tribes. 

2.  Kansas- -Child' s  Hand  with  Bracelet.  This  report  was  written  by 
Erica  Brick,  an  intern,  and  is  awaiting  review  by  the  Collection 
Committee.  The  report  covers  one  remain  and  a  few  associated 
funerary  objects  from  the  Sherman  Collection.  The  cultural 
affiliation  is  undetermined.  It  has  been  recommended  that  the 
remain  be  repatriated  to  the  Kansas  Unmarked  Burial  Sites  Board. 

3.  Hawikuh.  The  majority  of  the  Hawikuh  HRs  have  previously  been 
deaccessioned  and  transported  to  the  National  Museum  of  Natural 
History  in  1993  at  the  request  of  the  Pueblo  of  Zuni .Subsequently, 
three  additional  undocumented  Hawikuh  remains  were  located  during 
a  vault  search  in  the  NMAI  collection.  This  report  will  be  written 
by  Assistant  Curator  Eulalie  Bonar,  but  because  of  her  work  on  the 
Textiles  Project,  it  has  been  put  on  hold  until  the  new  year. 


274 


4.  Durand's  Bend.  This  report  has  just  been  completed  by  Patrick 
Tafoya,  and  is  awaiting  approval  of  the  Curatorial  Council.  This 
collection  consists  of  three  HRs  and  several  associated  funerary 
objects  collected  by  C.  B.  Moore  in  an  area  known  as  Durand's  Bend 
in  Alabama.  The  cultural  affiliation  has  been  determined  to  most 
likely  be  Choctaw. 

5.  Peru.  Ramiro  Matos  is  writing  this  report  with  the  help  of 
Jessica  Streibel  who  has  already  completed  the  preliminary  archival 
research.  In  total  there  are  13  HRs  from  Peru  and  no  associated 
funerary  objects.  The  project  has  been  temporarily  put  on  hold 
until  the  end  of  the  Indigenous  Leaders  Conference  in  October.  The 
report  should  be  finished  by  late  December. 

6.  Diegueno  Medicine  Man  (#11/6  921) .  Sonya  Wolff  began  research  on 
this  remain,  but  due  to  current  staffing  problems  in  the 
Repatriation  Office  this  report  has  temporarily  been  put  on  hold. 
Her  research  will  resume  when  the  Repatriation  Manager  is  hired. 
This  remain  was  collected  by  E.  H.  Davis  and  is  of  Diegueno 
ancestry. 

7.  Delaware.  This  report  was  initially  prepared  by  Laura  Mussio, 
an  intern,  and  is  being  rewritten  by  Assistant  Curator  Eulalie 
Bonar.  The  report  will  consist  of  two  HRs  from  the  Throgs  Neck  and 
Brooklyn  areas  of  New  York.  They  are  both  likely  affiliated  with 
the  Delaware  Indian  people. 

8.  Human  Skull  Rattle  (#22/3213).  Research  on  this  remain  has 
recently  been  started  by  Karen  Brockman.  It  is  probably  related  to 
a  group  of  HRs  that  were  deaccessioned  by  the  Board  of  Trustees  in 
1993  and  returned  to  the  Seneca  of  New  York.  The  previously 
deaccessioned  and  repatriated  remains  did  not  have  a  report  written 
to  the  current  standards. 

9.  Vertebra  with  Arrow  Point  (#21/4320).  Karen  Brockman  has 
recently  completed  her  report  for  this  remain.  It  is  probably 
related  to  a  group  of  HRs  that  were  deaccessioned  by  the  Board  of 
Trustees  in  1993  and  returned  to  the  Cayuga  of  New  York.  The 
previously  deaccessioned  and  repatriated  remains  did  not  have  a 
report  written  to  the  current  standards.  This  report  is  awaiting 
approval  of  the  Curatorial  Committee. 


Sacred  Items 

1.  Blackfeet  Thunder  Pipe.  The  Blackfeet  Indian  people  visited 
NMAI  for  a  repatriation  consultation  in  September  1994.  Upon 
locating  the  Thunder  Pipe,  the  Blackfeet  wrote  to  the  NMAI  formally 
requesting  its  return.  The  tribe  borrowed  the  pipe  for  one  year 
while  the  request  was  considered.  The  research  report  and  request 
for  repatriation,  written  by  Ray  Gonyea  and  George  Horse  Capture, 


275 


is  presently  awaiting  review  by  the  Collections  Committee. 

2.  Iroquois  Wampum  Belts  and  False  Face  Masks.  There  has  been  a 
long-standing  correspondence  history  between  the  Iroquois  and  the 
Museum  of  the  American  Indian,  Heye  Foundation.  In  the  Spring  of 
1994,  the  NMAI  received  a  formal  request,  under  the  guidelines  of 
NAGPRA,  from  the  Iroquois  for  the  return  of  all  Wampum  Belts  and 
False  Face  Masks  that  are  culturally  affiliated  with  the  Six 
Nations.  Dr.  Martin  Sullivan,  Director  of  the  Heard  Museum,  was 
hired  to  do  the  research  report  for  this  request.  This  report  is 
now  awaiting  review  by  the  Collection  Committee.  Presently,  no  one 
is  assigned  to  research  the  False  Face  Masks. 


VII.  BUDGET  1995  (At  present  these  figures  are  not  finalized) 


FUND  and  INTENT 


Amount    Amount 
Budgeted   Spent 


RPOPS 


521   Travel 

-  Staff  travel  to  Washington,  DC. 

-  Professional  conferences 


$2,000 
$5,000 


$1,612.55 
$3, 665.61 


Special  Travel  -  Transportation 

-  Tribal  delegation  repatriation 
visits 

-  HR  &  Sacred  Object  escort 

-  South  American  symposium 
TOTAL  TRAVEL 


$30,000     $9,413.50 

$13,000     $2,749.41 

$2,058.00 

$50,000    $19,499.07 


522-523  Transport  and  Rental 

-  HR  and  Sacred  Object  return 

525  Contracts  -  Tech. /Prof.  Services 

-  Mail  service  re-announcing  intent 
to  repatriate 

-  Listing  repatriated  items  in  the 
Federal  Registry 

-  Researchers  for  repatriation 
reports  and  consultations 

TOTAL  = 

REMAINING  = 


$10,000 


$0.00 


$5,000     $5,000.00 

$5,000     $5,000.00 

$20,000     $5,347.00 

$90,000    $15,347.00 

$44,846.07 


10 


276 


RPSUP 


526  Supplies  - 

-  Research  books,  pub. 

-  Laptop  Computer 

-  Office  Supplies 

-  Copies 

-  Shipping  supplies  for  HR's 

-  Photo  supplies 

TOTAL  = 
REMAINING  = 


$3, 

000 

$5.28 

$3, 

000 

$3,068.00 

$3, 

000 

$380.48 

$3, 

000 

$0.00 

$7, 

000 

$7,644.79 

$1, 

000 

$99.30 

$20, 

000 

$14,197.85 
$5,802.15 

RPTRAIN 


525  Staff  Development 

-  Professional  conferences 

-  NMAI  Workshops 

TOTAL  = 
REMAINING  = 


$2, 
$3, 

,000 
,200 

$995 
$320 

,00 
,  00 

$5, 

,200 

$1,315 

,00 

$3,885 

.00 

IN  SUMMARY 
REPOPS 
RPSUP 
RPTRAIN 


GRAND  TOTAL  = 
REMAINING  = 


$90,000    $44,846.07 

$20,000     $5,802.15 

$5,200     $3,885.00 

$115,200    $54,533.22 

$60,666.78 


11 


277 

REVISED  DRAFT  3/17/95 

NATIONAL  MDSEDM  OF  THE  AMERICAN  INDIAN 
REPATRIATION  PROCEDURES 

I .  INTRODUCTION 

The  National  Museum  of  the  American  Indian  (hereinafter 
referred  to  as  "NMAI"  or  "the  Museum")  was  established  by  Act  of 
Congress  on  November  28,  1989  (hereinafter  referred  to  as  "NMAI 
Act")  .  in  establishing  NMAI,  Congress  granted  sole  authority  to 
the  Board  of  Trustees  over  accessions,  deaccessions,  loans, 
exchanges,  sales,  and  all  other  aspects  pertaining  to  use  of  the 
collections.  As  part  of  its  authority  over  collections,  the  Board 
of  Trustees  adopted  a  Collections  Management  Policy  on  September 

II,  1992  which  includes  a  Section  on  Repatriation,  a  copy  of  which 
is  attached  hereto  as  Appendix  A. 

The  Museum  has  as  one  of  its  highest  priorities  the 
expeditious  implementation  of  its  repatriation  policy.  To  carry  it 
out  and  to  assist  Native  people  in  preparing  and  submitting  claims 
to  NMAI  for  repatriation,  the  following  procedures  have  been 
developed.  The  cornerstone  of  these  procedures  is  NMAI's 
commitment  to  continuous  dialogue  between  the  Museum  and  Native 
American  people  to  assure  that  all  viewpoints  and  beliefs  are 
considered  in  its  implementation. 

II .   INVENTORY 

A.  General.  In  accordance  with  the  NMAI  Act  and  Repatriation 
Policy,  NMAI  has  prepared  a  computerized  inventory  of  its 
collections  to  be  used  for  purposes  of  identifying  objects  in  the 
collections  that  may  be  eligible  for  repatriation.  The  purpose  of 
the  inventory  is  to  facilitate  repatriation  by  providing  clear 
descriptions  of  objects  and  establishing  the  cultural  affiliation 
between  the  objects  and  present-day  Native  Americans  and  tribes. 

B.  Steps.  The  steps  of  the  inventory  process  are  as  follows: 

1.  Using  the  best  available  scientific  and  historical 
information,  the  Museum  will  identify  funerary  objects,  communally- 
owned  Native  American  property,  ceremonial  and  religious  objects 
and  other  objects  covered  by  this  policy. 

2.  Identification  will  be  based  on  a  reasonable  belief 
standard. 

3 .  The  inventories  will  be  made  available  to  the  official 
tribal  government  of  all  affected  Native  American  tribes  at  the 
earliest  opportunity. 

4.  The  Museum  will  include  in  its  inventories  items  that  are 
not  positively  identifiable  as  being  associated  with  a  particular 
American  Indian  tribe  but,  given  the  totality  of  the  information 


278 


about  the  materials,  make  it  more  likely  than  not  that  the  item 
once  belonged  to  that  American  Indian  tribe. 

C  Consultation.  During  the  inventory  process  and  following 
its  completion,  the  Museum  will  consult  widely  with  Native  American 
peoples.   This  shall  include,  but  not  be  limited  to: 

(1)  lineal  descendants; 

(2)  Indian  tribe  officials; 

(3)  traditional  religious  and  ceremonial  leaders;  and 

(4)  Indian  c-immunity  scholars  with  specialized  knowledge. 

With  respect  to  consultation  with  tribal  officials  and 
traditional  religious  and  ceremonial  leaders,  the  Museum  shall 
consult  with   those: 

(1)  From  whose   tribal   lands   the  materials  originated; 

(2)  That  are,  or  are  likely  to  be,  culturally  affiliated  with 
the  materials;   and 

(3)  From  whose  aboriginal   lands   the  materials  originated. 

III.   REQUESTS  FOR  REPATRIATION  FROM  TRIBES 

A.  General.  Letters  requesting  repatriation  shall  be  sent  in 
writing  to  the  Director  of  the  Museum: 

W.  Richard  West,  Jr. ,  Director 
National  Museum  of  the  American  Indian 
Smithsonian  Institution 

470  L'Enfant  Plaza,  Suite  7103,  MRC  934 
Washington,  D.C.   20560 

A  copy  should  be  sent  to  the  Repatriation  Office  of  the  Museum: 

Repatriation  Project  Manager 

National  Museum  of  the  American  Indian 

3401  Bruckner  Boulevard 

Bronx,  New  York  10461 

(718)  828-1176 

(718)  828-0980  (facsimile) 

The  Director  will  acknowledge  the  request  in  writing,  provide  a 
copy  of  the  Museum's  Repatriation  Policy  and  these  procedures  (if 
not  already  made  available)  ,  and  a  copy  of  the  printout  of  the 
relevant  collections  inventory.  A  copy  of  the  acknowledgement 
letter  will  be  sent  to  the  Repatriation  Office  which  will  be  the 
principle  point  of  contact  in  the  Museum  for  repatriation 
activities. 

B.  Specific  Information.  All  requests  shall  refer  to 
specific  objects  by  reference  to  the  inventory  and/or  specific 
catalogue  numbers  as  well  as  the  physical  description.  The  request 
should  indicate  the  category  of  repatriatable  material  into  which 
the  objects  falls,  i.e.,  funerary  object,  communally-owned  Native 


279 


American  property,  ceremonial  and  religous  objects,  objects 
transferred  to  or  acquired  by  the  Museum  illegally  or  under 
circumstances  that  render  invalid  the  Museum's  claim  to  them-  The 
request  should  provide  the  basis  for  the  classification  of  objects 
into  these  categories. 

C.  Provision  of  Information  from  the  Tribe.  Upon  request  by 
the  Museum,  the  tribe  shall  provide  the  following  additional 
information: 

(1)  N=une  and  addresc  of  Indian  tribe  official (s)  authorized 
to  act  as  representative  in  consultations  related  to  particular 
ob j  ects ;  and 

(2)  Recommendations  on  how  the  consultation  process  should  be 
conducted,  including  names  and  appropriate  methods  to  contact  any 
lineal  descendants,  traditional  religious  leaders,  or  Indian 
community  scholars  who  should  be  consulted;  and 

(3)  Recommendations  for  further  inquiry  in  the  event  the 
inventory  process  has  failed  to  produce  sufficient  information  as 
to  whether  the  object  fits  into  a  repatriatable  category  and/ or 
whether  sufficient  evidence  of  cultural  affiliation  exists. 

0.  Provision  of  Information  from  the  Museum.  During 
inventory  consultation,  NMAI  will  disclose  all  relevant  information 
pertaining  to  collection  objects  identified  in  the  inventories. 
The  information  shall  be  provided  in  writing  to  lineal  descendants, 
when  known,  and  to  officials  and  traditional  religious  leaders 
representing  Native  American  tribe  that  are,  or  are  likely  to  be, 
culturally  affiliated  with  the  materials.  Included  in  the 
information  shall  be: 

(1)  A  list  of  all  Indian  tribes  that  are,  or  have  been, 
consulted  regarding  the  particular  objects; 

(2)  A  general  description  of  the  conduct  of  the  inventory; 

(3)  A  projected  time  frame  for  conducting  the  inventory; 

(4)  An  indication  that  additional  documentation  used  to 
identify  cultural  affiliation  will  be  supplied  upon  request. 

(5)  Accession  and  catalogue  entries; 

(6)  Information  relating  to  the  acquisition  of  each  objects 
including  (i)  name  of  the  person  or  organization  from  whom  the 
object  was  obtained,  if  known,  (ii)  the  date  of  acquisition,  (iii) 
the  place  each  object  was  acquired,  i.e.,  geographic  location,  and 
(iv)  the  means  of  acquisition,  i.e.,  gift,  purchase,  or  excavation; 

(7)  A  description  of  the  objects,  including  dimensions, 
materials,  and,  if  appropriate,  photographic  documentation  and  the 
antiquity  of  such  objects;  and 

(8)  A  summary  of  the  evidence  used  to  determine  cultural 
affiliation. 

(9)  Relevant  studies  that  may  bear  on  geographic  origin, 
cultural  affiliation,  and  basic  facts  surrounding  the  acquisition 
and  accession  of  the  materials. 


280 


IV.       RESOLUTION   OF    REPATRIATION   REQUESTS 

A.  Burden  of  Proof.  The  initial  burden  of  proof  with  respect 
to  a  repatriation  request  shall  be  on  the  requesting  individual  or 
tribe  to  establish,  by  a  reasonable  basis,  (i)  that  the  object 
requested  falls  into  a  repatriatable  category;  and  (ii)  that  the 
requesting  party  has  a  connection  to  the  material  in  question, 
whether  by  lineal  descent,  tribal  affiliation,  and/or  cultural 
affiliation. 

1.  Repatriatable  Objects.  The  objects  that  are  subject  to 
repatriation  fall  into  certain  categories  as  defined  by  the  NMAI 
Act  and  Museum  policy. 

a.  Funerary  Objects.  Funerary  objects  are  defined  as  objects 
that,  as  part  of  a  death  rite  or  ceremony  of  a  culture,  are 
reasonably  believed  to  have  been  intentionally  placed  with  an 
individual  of  known  affiliation  at  the  time  of  death  or  later.  The 
Museum  will  repatriate  any  funerary  objects  associated  with  human 
remains,  including  objects  which  are  surrogates  for  deceased 
persons.  The  Museum  also  will  repatriate  to  a  particular  tribe, 
upon  request,  any  funerary  object  that  is  reasonably  identified  as 
having  been  removed  from  a  specific  burial  site  culturally 
affiliated  with  that  tribe. 

b.  Communally-owned  Native  American  Property.  Property  held 
by  the  Museum  that  is  property  of  the  Native  American  group  itself, 
rather  than  property  owned  by  an  individual  Native  American  is 
considered  communally-owned  property.  If  such  property  belonged  to 
an  entire  tribe,  organization,  or  group,  or  was  held  for  communal 
purposes  and  could  not  have  been  legally  alienated,  transferred,  or 
conveyed  by  an  individual  Native  American,  these  items  will  be 
repatriated  upon  request. 

c.  Ceremonial  and  Religious  Objects.  These  are  objects  that 
are  needed  by  Native  American  religious  leaders  for  the  practice  of 
traditional  Native  American  religions,  including  the  purpose  of 
ceremonial  renewal.  Ceremonial  and  religious  objects  may  include 
intellectual  property  such  as  photographs,  recordings,  videos, 
field  notes,  archival  materials,  and  other  similar  tangible  and 
intangible  property  that  is  directly  associated  with  the 
confidential  and  proprietary  realms  of  Native  American  religious 
and  ceremonial  practices.  Requests  for  return  of  these  items  will 
be  considered  on  a  case-by-case  basis  in  consultation  with  Native 
American  traditional  religious  leaders  and  practitioners. 

d.  Objects  Acquired  Illegally.  This  category  consists  of 
objects  acquired  by  or  transferred  to  the  Museum  illegally  or  under 
circumstances  that  render  invalid  the  Museum's  claim  to  them. 

e.  Duplicate  or  Abundant  Objects.  These  include  duplicate 
material,     numerous     similar     objects     in     the     collection,      or    an 


281 


abundance  of  a  certain   type  of  material. 

f  Intellectual     Property.         This     category     consists     of 

photographs,  field  notes,  audiotapes,  videotapes,  archival  records, 
and  other  forms  of  oral  and  written  documentation  containing 
information  that  is  integral  to  protecting  the  confidentiality  and 
proprietary  relalms  of  Native  American  religion. 

2.  Cultural  Affiliation.  The  second  prong  in  establishing  a 
valid  request  is  the  connection  between  the  requesting  party  ana 
the  objects.  That  connection  may  be  based  on  lineal  descent, 
tribal  affiliation,  and/or  cultural  affiliaiton.  In  some  cases 
the  burden  can  be  satisfied  by  reference  to  the  Museum's  inventory. 
Where  the  inventory  is  inconclusive  or  cannot  determine 
affiliation,  the  requesting  party  may  satisfy  its  burden  through 
evidence  of  geography,  descent,  kinship,  archaeology,  anthropology, 
linguistics,  folklore,  oral  tradition,  historical  patterns  of 
ownership  and/or  control,  and  other  relevant  information  or  expert 
opinion. 

B.  Review  of  Information.  The  staff  of  the  Repatriation 
Office  initially  will  review  all  information  relevant  to  a 
particular  request,  and  will  follow-up  with  the  tribe  if 
information  is  missing  or  if  additional  materials  are  needed  to 
evaluate  the  claim.  The  initial  focus  of  all  repatriation  requests 
involves  the  nature  of  the  material  in  question  and  the 
circumstances  of  its  acquisition  by  the  Museum.  Each  repatriation 
request  carries  with  it  unique  facts,  circumstances,  and  legal  ana 
ethical  considerations.  Therefore,  each  request  must  be  reviewed 
individually.  The  Repatriation  Office  staff  will  consult  with 
Museum  curators  and  other  staff  within  the  Museum  in  researching 
and  evaluating  the  request. 

C  Experts.  If  deemed  necessary  by  the  Museum  and/or  the 
tribe  to  evaluate  a  specific  request,  the  Museum  may  retain  experts 
as  may  be  needed,  such  as  Indian  community  scholars,  specialistsin 
tribal  traditions,  persons  in  the  fields  of  anthropology, 
archeology,  and  history  to  assist  in  evaluating  cultural 
affiliation.  Whenever  possible,  the  Museum  will  work  with  Indian 
tribes  to  select  experts  who  are  mutually  acceptable  to  the  Museum 
and  the  tribe. 

D.  Conflicting  Claims.  If  multiple  claims  are  submitted,  or 
if  the  Museum's  research  suggests  that  the  materials  may  be  more 
closely  affiliated  with  a  Native  American  tribe  or  tribes  other 
than  the  requesting  party,  the  Museum  will  notify  the  tribe 
submitting  the  request  and  all  other  possible  claimants.  All 
parties  with  a  demonstrable  interest  will  be  invited  to  ]oin  in  the 
consultation,  negotiation,  and  decision-making  process.  Tne 
Museum  may  retain  the  objects  until  such  time  as  all  requesting 
parties  mutually  agree  upon  the  appropriate  recipient  or  until  a 
final  decision  is  made  by  the  Board  of  Trustees  in  accordance  with 


282 


these  procedures. 

E.  Visitation.  During  the  consultation  phase,  and  after 
receipt  of  information  from  the  Museum,  if  the  tribe  deems  it 
necessary  to  visually  inspect  the  materials,  the  Museum  will 
provide  travel  funds  for  at  least  one  representative  to  visit  the 
collections.  Visits  shall  be  scheduled  by  contacting  the 
Repatriation  Office.  Visitors  are  permitted  access  to  the 
collections  and  museum  records  and  may  photograph  and/or  videotape 
collection  materials  subject  to  the  Museum's  conservation  and 
lighting  guidelines.  Photographs  may  also  be  ordered  through  the 
Photography  Department  according  to  the  current  fee  schedule. 
Staff  members  can  advise  requestors  about  the  documentation  and 
photographs  of  objects  in  the  Museum's  collections. 

F.  Status  of  Collections  During  Consultation  Phase.  During 
the  pendency  of  the  claim  and  before  a  final  decision  is  reached, 
the  Museum  will  continue  to  care  for  and  treat  the  collections 
subject  to  the  repatriation  request  with  dignity,  respect,  and 
sensitivity.  As  a  general  policy  of  the  Museum,  objects  will 
continue  to  be  made  available  for  research  if  there  is  no 
compelling  reason  to  believe  that  an  object  raises  the  concerns  of 
the  group  identified  with  it.  However,  if  the  tribe  has  specific 
concerns  about  the  handling  of  specific  objects  including,  for 
example,  whether  the  objects  should  be  photographed  or  otherwise 
accessible  to  non-tribal  members,  the  Museum  will  work  closely  with 
the  tribe  to  accommodate  its  concerns.  Whenever  there  is  a 
conflict  between  a  desire  for  public  or  scholarly  access  to 
materials  by  individuals  not  affiliated  with  the  group  identified 
with  the  materials,  and  the  desire  of  representatives  of  that  group 
to  protect  the  materials  from  access  in  order  to  preserve  the 
traditions  and  integrity  of  the  culture,  the  wishes  of  the  group's 
representatives  will  prevail.  (See  Museum  Research  Policy) 

6.  Impasse.  If,  during  the  consultation  phase,  discussions 
concerning  repatriation  have  reached  an  impasse,  the  Board  of 
Trustees  shall,  upon  being  notified  by  the  Director,  constitute  a 
Special  Review  Committee  within  fifteen  days.  The  Special  Review 
Committee,  which  will  consist  of  members  of  the  Board  and,  if 
advisable,  other  individuals  with  expertise  invited  by  the  Board  to 
participate,  will  review  the  nature  of  the  controversy,  examine  the 
evidence  presented  by  the  parties  in  dispute,  and  present  its 
findings  and  recommendations  to  the  Collections  Committee  of  the 
Board  of  Trustees  within  thirty  days.  The  Collections  Committee 
shall  review  the  findings  and  recommendations  of  the  Special  Review 
Committee  and  shall,  within  fifteen  days,  submit  a  recommendaed 
course  of  action  to  the  Board  of  Trustees  for  its  consideration. 

V.   RECOMMENDATION  AND  DECISION 

A.  Recommendations.  Upon  completion  of  research, 
documentation,  consultation  and  resolution  of  any  conflicting 


283 


claims,  the  Repatriation  Office  will  submit  a  recommendation  for 
action  to  the  Director  of  the  Museum.  If  the  Director  approves  tne 
recommendation,  it  will  be  submitted  to  the  Collections  Committee 
of  the  Board  of  Trustees  for  action  and  recommendation  to  the  ruii 
Board  of  Trustees.  If  the  Director  disagrees  with  tne 
recommendation  or  believes  that  additional  research  is  required, 
the  Director  may  either  refer  the  matter  back  to  the  Repatriation 
Office  staff  or  refer  the  matter  to  the  Collections  Committee  or 
the  Board  of  Trustees  with  separate  recommendations. 

B.  Pinal  Decision.  A13  final  decisions  regarding 
repatriation  shall  be  made  by  the  Board  of  Trustees  in  accordance 
with  the  National  Museum  of  the  American  Indian  Act. 

C.  Notification.  The  Director  will  notify  the  requesting 
party (ies)  of  the  final  decision  of  the  Board  of  Trustees.  If  the 
decision  is  in  favor  of  repatriation,  notice  of  the  Museum  s 
intention  to  repatriate  will  be  published  in  a  variety  of 
newspapers  designed  to  provide  the  widest  practicable  notice  to  all 
actually  and  potentially  interested  parties.  Radio  notices  will 
also  be  provided  through  the  stations  most  likely  to  reach  all 
interested  persons.  The  Museum  may  seek  the  assistance  of  tne 
requesting  party  in  identifying  suitable  other  means  and  locations 
for  providing  notice.  The  Notices  will  provide  that  any  interested 
person  shall  have  thirty  (30)  days  in  which  to  ob j ect  to  the 
repatriation.  Unless  any  objection  is  made  in  writing  within  that 
time  period,  the  materials  will  be  returned  no  later  than  thirty 
(30)  days  after  the  notice  period  has  expired  and  the  Museum  will 
no  longer  have  any  responsibility  for  such  objects. 

D.  -  Objection  to  Notice.  In  the  unlikely  event  that  an 
objection  is  received  during  the  notice  period,  it  will  be  reviewed 
by  the  Repatriation  Office  staff  to  determine  its  validity. _  If  the 
reason  for  the  objection  is  based  on  a  conflicting  claim,  the 
Museum  will  follow  the  procedures  set  forth  above  for  resolving 
conflicting  claims  and  will  refrain  from  repatriating  the  materials 
until  all  conflicting  claims  are  resolved. 

VI .   REPATRIATION 

A.  General.  The  Museum  shall  consult  with  the  tribe 
regarding  the  arrangements  for  return.  Under  standard  procedures, 
objects  will  be  packed  in  suitable  containers  and  shipped  to  the 
location  and  individual  specified  by  the  requesting  party.  The 
authorized  representative  of  the  tribe  will  be  asked  to  sign  a 
receipt  and  release  form  acknowledging  receipt  of  the  objects. 
Alternatively,  the  Museum  will  pay  for  one  of  its  staff  members  to 
escort  objects  to  their  final  destination  if  the  tribe  so  requests. 

B.  Record  of  Repatriation.  The  Museum  shall  use  standard 
deaccession  procedures  to  permanently  document  the  content  and 
recipients  of  all  repatriations.   Standard  deaccession  procedures 


284 


shall  include,  for  human  remains:  measurements  of  the  skeletal 
remains,  observation  of  traits  such  as  gender  and  age,  pathology  of 
the  individual  such  as  sickness  or  injury,  condition  of  skeletal 
remains,  and  a  complete  documentary  search  of  Museum  records 
related  to  the  remains,  their  accession,  and  history.  For  other 
materials,  measurements,  descriptions  and  a  complete  documentary 
review  shall  be  conducted.  Other  procedures  such  as  x-ray  or 
photography,  reproduction  of  the  skeletal  remains  or  materials,  or 
destructive  scientific  analysis  of  the  materials  prior  to 
repatriation  shall  not  be  done  unless  the  Museum  has  first  obtained 
the  consent  of  the  tribe.  If  photography  is  not  permitted,  the 
Museum  may  sketch  or  draw  the  materials. 

C.  Procedures  for  Repatriation  Records.  If  the  tribe  permits 
the  Museum  to  take  photographs  or  make  other  replicas  as  part  of 
the  deaccession  process  but  does  not  want  the  documentation  to  be 
made  available  to  the  general  public  following  repatriation,  the 
Museum  shall  take  steps  to  ensure  that  such  information  is  not 
released.  Such  materials  may  be  placed  in  sealed  envelopes  or  in 
a  locked  vault  with  access  restricted  to  staff  and  affiliated 
tribal  members. 

D.  Handling  of  Objects.  The  Museum  shall  notify  the  tribe  of 
any  presently  known  treatment  of  objects  with  pesticides, 
preservatives,  or  other  substances  that  represent  a  potential 
hazard  to  the  objects  or  to  persons  handling  the  objects. 

E.  Costs.  The  Museum  will  use  good  faith  efforts  to  make 
space  available  on  the  Museum's  premises  for  the  preparation  and 
packing  of  the  objects  by  tribal  representatives  including  the 
performance  of  related  ceremonies.  The  Museum  will  not  be 
responsible  for  any  costs  for  special  affairs,  religous 
observances,  or  any  other  materials  or  services  that  the  requesting 
party  may  deem  appropriate  in  conjunction  with  the  repatriation  of 
objects. 

P.  Religious  Objects.  The  Museum  will  pay  for  one 
representative  of  the  requesting  party  to  travel  to  New  York  for 
one  overnight  stay  to  pick  up  and  escort  especially  sensitive 
religious  objects  to  their  final  destination.  These  objects  will 
be  packed  in  containers  suitable  for  carry-on  baggage  in  an 
aircraft  cabin  if  possible.  It  is  recommended  that  artifacts  not 
be  checked  as  baggage. 

G.  Receipt  and  Release.  The  Museum  will  submit  a  Receipt  and 
Release  Form  to  the  tribe  for  review  and  signature  to  confirm,  in 
writing,  that  the  materials  have  been  received  by  the  tribe.  The 
Receipt  and  Release  transfers  all  responsibility  for  the  materials 
to  the  tribe  and  holds  the  Museum  harmless  from  any  future  claims 
to   the  materials. 

H.         Conditions     of     Return.         The     return     of    materials     in 


285 


accordance  with  these  procedures  to  the  tribe  is  based  on  the 
presumption  that  the  tribe  will,  in  the  case  of  human  remains  and 
funerary  objects,  rebury  them  in  the  ground.  In  the  case  of  sacred 
objects  and  cultural  patrimony,  the  presumption  is  that  the 
materials  are  needed  by  the  tribe  for  religious  practices  and 
cultural  renewal  and  will  be  retained  permanently  by  the  tribe. 
Therefore,  an  implied  condition  of  repatriation  is  that  the  tribe 
will  not  transfer,  sell,  alienate  or  other  traffic  in  these 
materials  for  financial  gain  or  otherwise,  nor  authorize  others  to 
do  so.  If  the  Museum  has  a  good  faith  reason  to  believe  that  the 
repatriated  materials  may,  following  returr..  be  transferred,  sold, 
or  otherwise  alienated  by  a  member  of  the  tribe  without  the  tribe's 
authorization,  the  Museum  may  impose  contractual  conditions  on  the 
return  that  require  the  tribe  to  permanently  retain  the  materials. 

VII.  INTERNATIONAL  REPATRIATIONS.  The  Museum  will  consider 
international  requests  on  a  case-by-case  basis,  taking  into 
consideration,  among  other  factors,  whether  the  requesting  tribe  is 
located  on  or  near  the  United  States  border  with  Canada  and  Mexico 
and  has  members  in  the  United  States  and  whether  the  country 
requesting  the  materials  has  a  policy  of  reciprocity  with  respect 
to  repatriation  of  Native  American  materials. 

VIII.  POST-REPATRIATION  PROCEDURES. 

A.  Technical  Assistance.  The  Museum  is  available  to  provide 
technical  assistance  in  the  care,  preservation,  use,  and 
disposition  of  materials  following  repatriation.  Such  assistance 
may  include  advice  to  tribal  museums  and  training  programs,  if 
requested. 

VTJJ.  ALTERNATIVES  TO  REPATRIATION.  Under  certain  circumstances, 
the  Museum  may  propose  alternatives  to  repatriation  for  the  tribe 
to  consider.  Alternatives  may  include,  for  example,  retention  by 
the  Museum  of  the  object  for  care  and  conservation,  with  the 
understanding  that  the  tribe  will  have  access  to  the  object  as 
needed  for  religious  or  ceremonial  purposes . 


*   Additional  materials  submitted  by  the  Smithsonian  Institution  will  be  kept  on  file 
in  the  Senate  Committee  on  Indian  Affairs. 


286 


WESTERN  SHOSHONE  HISTORIC  PRESERVATION  SOCIETY 

ELKO  INDIAN  COLONY 
1561  PINENUT  CIRCLE 
ELKO.  NEVADA  &9601 
PHONE  »   (702)  738-4147 

FAX  $    (702)  738-7070 
E-Mail    -    klbbey06ierra.net 


Eieojtm  Board  at  TnMn 


Bute  Valley,  Nevada 


Baltic  Mouataia 


Larrf  K.bbr 

Bto  Iraliao  Coloi 
Hko.  Nevada 

Active  Ueiabev'i 

Baltic  Mount  am  Indau  Coloar 
Batik  Uoucnatri   Nevada 

AnaM   PoUette 
Rebecca  L  Jovce 


November  30, 1995 

The  Honorbale  Senator  John  McCain 

Chairman 

United  States  Senate 

Senate  Committee  On  Indian  Affairs 

Washington,  D.C.  20510-6450 

Dear  Mr.  Chairman: 

The  enclosed  document  is  in  relation  to  the  Senate  Oversight  Hearingon 
NAGPRA  scheduled  for  December  6,  1995,  at  the  Russell  Senate  Building  at  9:30 
a.m. 

Contemporary  Native  American  Indian  Burials  are  being  destroyed  and  des- 
ecrated, as  they  were  in  the  past,  and  legally  in  a  manner  of  speaking  today,  and 
measures  must  be  taken  to  hinder  or  distort  this  activity. 

Indian  Cemeteries  must  be  given  a  form  of  legal  justice  in  order  to  safe-guard 
them  from  future  mitigation  and  or  excavation.  Hopefully  the  contents  of  this  docu- 
ment can  provide  an  avenue  that  will  enhance  the  concerns  and  interest  of  the 
Native  American  Indian  in  their  plight  to  preserve  and  protect  their  Traditional 
Indian  Cemeteries  and  or  Burial  Sites. 

If  you  have  any  questions,  please  feel  free  to  contact  this  organization.  Thank 
you  for  your  time  in  tnis  matter  and  for  viewing  this  document. 

Sincerely, 

Larry  Kibby,  Program  Director 
W.S.H.P.S. 


287 

DATE:  November  28, 1995 

TO:  Senate  Committee  On  Indian  Affairs 

FROM:         Larry  Kibby,  Consultant/Director 

Western  Shoshone  Historic  Preservation  Society 

SUBJECT:     Senate  Oversight  Hearing  On  NAGPRA 


On  November  16, 1990,  the  United  States  101st  Congress  enacted  the  Native 
American  Graves  Protection  and  Repatriation  Act(NAGPRA)-H.R.  5237OP.L. 
101-601),  for  the  purpose  of  providing  for  the  protection  of  Native  American 
Indian  Graves  and  for  other  purposes. 

Under  NAGPRA,  Section  2  DEFINITIONS  (1)  "burial  site"  means  any  natu- 
ral or  prepared  physical  location,  whether  originally  below,  on  or  above  the  sur- 
face of  the  earth,  into  which  as  a  part  of  the  death  rite  or  ceremony  of  a  cul- 
ture, individual  human  remains  are  deposited. 

Under  NAGPRA,  Section  2  DEFINITIONS  (5)  "Federal  Lands"  means  any 
land  other  than  tribal  lands  which  are  controlled  or  owned  by  the  United 
States. 

Under  NAGPRA  Section  3  OWNERSHIP  (a)  Native  American  Human 
Remains  and  Objects-. 

WHEREAS,  in  relation  to  this  Oversight  Hearing  on  NAGPRA,  the  Senate 
Committee  On  Indian  Affairs  does  need  to  justify  a  term  directed  at 
"Contemporary  Native  American  Indian  Burials",  that  are  in  fact 
"Burial  Srtes"7 located  on  "Federal  Lands",  that  should  be  "Owned"  and 
"Managed"  by  those  Sovereign  Nations  claiming  "Ownership". 

WHEREAS,  due  to  "THE  INDIAN  REMOVAL  ACT"(i83o):  certain 
Indian  Lands  became  "Federal  Lands",  in  which  some  "Indian  Cemeter- 
ies" and  "Burial  Sites"  became  a  part  of  the  "Publie  Domain^,  which  has 
led  to  Anthropology  and  Archaeology  "Ownership",  that  did  in  fact  lead_  to 
unnecessary  excavations  of  ^Native  American  Indian  Human  Remains 
and  or  Sacred  Objects",  from  these  declared  Native  American  "Indian 
Cemeteries"  and  or  "Burial  Sites". 

WHEREAS,  due  to  "THE  GENERAL  ALLOTMENT  ACTX1887):  certain 
Indian  Lands  became  "Federal  Lands",  in  which  some  "Indian  Cemeter- 
ies" and  "Burial  Sites"  became  a  part  of  th"  """*»«"  nnmain"  which  has 
led  to  Anthropology  and  Archaeology  "Ownership",  that  did  in  fact  lead  to 
unnecessary  excavations  of  ^Native  American  Indian  Human  Remams 
and  or  Sacred  Objects",  from  these  declared  Native  American  .Indian 
Cemeteries"and  or  "Burial  Sites". 


Page  One 


288 


WHEREAS,  due  to  "THE  RELOCATION  ACT"(i956):  certain  Indian 
lands  became  "Federal  Lands",  in  which  some  "Indian  Cemeteries"  and 
"Burial  Sites"  became  a  part  of  the  "Public  Domain",  which  has  led  to 
Anthropology  and  Archaeology  "Ownership",  that  did  in  fact  lead  to  unne- 
cessary excavations  of  "Native  American  Indian  Human  Remains  and  or 
Sacred  Objects" ,  from  these  declared  Native  American  "Indian  Cemeter- 
ies!' and  or  "Burial  Sites". 

WHEREAS,  fact,  NAGPRA  does  allow  for  Repatriation  of  Remains  and  or 
Sacred  Objects  from  Museums  and  other  such  places,  to  identify  Burial  Sites, 
and  for  the  Sovereign  Nations  to  declare  Ownership  of  regarded  Funerary 
items,  however,  NAGPRA  does  not  resolve  the  fact  that,  Native  American 
Indian  Cemeteries  and  or  Burial  Sites,  are  still  being  excavated,  due  to  their 
existence  on  Federal  Lands,  declared  to  be  a  part  of  the  Public  Domain. 

WHEREAS,  Indian  Cemeteries  and  or  Burial  Sites,  located  on  the  Public 
Domain,  under  management  of  such  federal  agencies  as  the  U.S.  Forest  Serv- 
ice, Bureau  of  Land  Management  and  National  Parks  Service,  have  in  fact 
been  addressed  by  the  Anthropology  and  Archaeology  Community  as  to 
being  either  Prehistoric  and  or  Historic,  and  Federal  Property. 

WHEREAS,  fact,  NAGPRA  does  allow  for  Consultation  with  the  Sovereign 
Nations,  Government  to  Government,  in  relation  to  the  findings  of  Prehis- 
toric or  Historic  Sites,  that  may  or  may  not  contain  Burials,  on  Public  Lands, 
however,  NAGPRA  does  not  allow  for  any  Legal  Protection  of  Indian 
Cemeteries  and  or  Burial  Sites,  which  are  still  being  utilized  by  the  Sovereign 
Nations  to  this  date  for  burial  of  their  Tribal  Member's,  and  that  are  located 
outside  of  Reservation  Boundaries,  on  so-called  Public  Domain,  considered  to 
be  the  Legal  Traditional  Territory  of  the  Sovereign  Nations,  leading  to  possi- 
ble Mitigation  and  or  excavation  of  these  sites,  by  Archaeologist. 

WHEREAS,  legal  factor's,  Federal  and  State  Laws,  are  structured  favorable  to 
Anthropologist  and  Archaeologist  and  or  therein  of,  towards  declaring  such 
sites  on  Federal  Lands  as  property  of  the  Federal  Government,  and  that  all 
due  consideration  of  these  areas  must  be  established  towards  the  Anthropolo- 
gist and  Archaeologist  Community,  with  sincere  regard  of  the  Scientific 
Research  and  or  Data  that  can  be  obtained  and  utilized  to  evaluate  the  past,  in 
order  to  enhance  the  education  of  Man  for  future  generations. 

WHEREAS,  because  Anthropologist  and  Archaeologist  consideration  is 
established  and  given  priority,  such  Indian  Cemeteries  and  or  Burial  Sites 
such  as  the  Wells,  Nevada  Indian  Cemetery  and  the  Ruby  Valley,  Nevada 
Indian  Cemetery(enclosed  data),  that  are  located  on  Federal  Lands  are  not 
addressed  in  any  form  of  either  Federal  and  or  State  laws  that  assure  the  Pres- 
ervation and  or  Protection  of. 

WHEREAS,  due  to  the  Relocation  and  Reservation  Down-sizing  of  the 
Native  American  Indian  and  their  reservations,  some  Indian  Cemeteries  and 
or  Burial  Sites,  were  not  moved,  due  to  Traditional  Respect,  therefore,  such 
Sites  are  located  on  what  is  now  known  as  Federal  Lands  and  are  not  a  legal 
part  of  the  lands  of  the  Sovereign  Nations. 


Page  Two 


289 


WHEREAS,  due  to  Relocation  and  Reservation  Down-sizing,  such  Indian 
Cemeteries  and  or  Burial  Sites  such  as  the  Wells,  Nevada  Indian  Cemetery, 
Ruby  Valley,  Nevada  Indian  Cemetery,  Rock  Creek,  Nevada  Burial/Cemetery, 
Cherry  Creek  Range,  Butte  Valley,  Nevada  Cemetery,  have  been  and  are  still 
being  utilized  for  Traditional  Burial's  and  cared  for  by  the  Native  American 
Indian  Community,  though  in  such  cases  as  the  Rock  Creek,  Nevada 
Burial/Cemetery,  and  the  Cherry  Creek  Range,  Butte  Valley,  Nevada 
Cemetery,  use  of,  was  discontinued,  though  they  are  located  on  the  Public 
Domain  and  Living/Lineal  Descendants  do  protest  any  form  of  destruction  or 
desecration  therein  of. 

WHEREAS,  due  to  priority  regards  provided  to  the  Anthropology  and 
Archaeology  Community,  such  areas  as  the  Rock  Creek  Burial/Cemetery  and 
the  Cherry  Creek  Range,  Butte  Valley,  Nevada  Cemetery  are  not  afforded 
legal  protection  and  become  available  for  near  future  Mitigation  and  or  for 
Excavation,  because  they  are  located  on  the  Federal  Lands. 

WHEREAS,  Indian  Cemeteries  and  or  Burial  Sites  are  a  valid  part  of  the  Tra- 
dition and  Traditional  Belief  of  the  Sovereign  Nations,  not  or  New  Age  The- 
ory or  Philosophy  and  not  afforded  any  manner  of  respect  by  some  Anthro- 
pologist and  or  Archaeologist,  nor  is  there  any  form  of  legal  protection  for 
them. 

THEREFORE,  the  Senate  Committee  On  Indian  Affairs  must  promote  an 
Amendment  for  the  Native  American  Graves  Protection  and  Repatriation 
Act  of  1990,  to  where  a  constructive  form  of  Legal  Justice  will  prevail  for  the 
Sovereign  Nations  in  their  endeavor  towards  the  Preservation  and  Protection 
of  their  Native  American  Indian  Cemeteries  and  or  Burials,  located  on  Fed- 
eral Lands,  understood  to  be  the  Public  Domain. 

FURTHERMORE,  the  Senate  Committee  on  Indian  Affairs  must  promote 
an  Amendment  for  the  Native  American  Graves  Protection  and  Repatriation 
Act  of  1990,  to  where  a  legal  description  can  be  established  for  such  Indian 
Cemeteries  and  or  Burial  Sites  as;  the  Wells,  Nevada  Indian  Cemetery,  Ruby 
Valley,  Nevada  Indian  Cemetery,  the  Rock  Creek,  Nevada  Burial/Indian 
Cemetery  and  the  Cherry  Creek  Range,  Butte  Valley  Cemetery,  in  order  to 
legally  secure  Protection  of  such  Indian  Cemeteries  and  or  Burial  Sites, 
located  on  Federal  Lands,  understood  to  be  the  Public  Domain,  managed  by 
such  agencies  as  the  Bureau  of  Land  Management,  U.S.  Forest  Service  and 
National  Parks  Service,  to  where  they  can  not  be  labeled  as  Prehistoric  and  or 
Historic,  eligible  for  Mitigation  and  or  Excavation,  by  Anthropologist  and  or 
Archaeologist. 

FURTHERMORE,  the  Senate  Committee  On  Indian  Affairs  should  Amend 
the  Native  American  Graves  Protection  and  Repatriation  Act  of  1990,  to 
include  separation  of  Federal  Funds  with  a  larger  amount  directed  to  the  Sov- 
ereign Nations  and  not  to  those  institutions  such  as  Museums,  whom  have 
discriminately  been  revered  with  an  unnecessary  priority,  endorsed  by  the 
Anthropology  and  Archaeology  Community. 


Page  Three 


BOSTON  PUBLIC  LIBRARY 

290 

3  9999  05983  729  2 

FURTHERMORE,  the  Senate  Committee  On  Indian  Affairs  should  Amend 
the  Native  American  Graves  Protection  and  Repatriation  Act  of  1990,  to 
include  such  language  that  will  distort  the  Theory  and  Philosophy  of  the  New 
Age  Organizations  and  or  Groups,  and  that  such  language  will  advocate  a  legal 
endorsement  of  the  Sovereign  Nations  Tradition  and  Traditional  Belief,  so 
that  Indian  Cemeteries  and  or  Burial  Sites  will  not  become  a  Public  mockery 
or  a  tool  to  be  used  for  personal  and  or  monetary  gain. 

FURTHERMORE,  the  Senate  Committee  On  Indian  Affairs  should  Amend 
the  Native  American  Graves  Protection  and  Repatriation  Act  of  1990,  to 
include  such  language  to  where  full  priority  shall  be  established  for  the  Sover- 
eign Nations  or  the  Native  American  Indian  to  fully  identify,  manage  and 
own,  Indian  Cemeteries,  Burial  Sites  and  those  Funerary  Objects  of  Sacred 
identity  and  all  other  such  Artifacts,  discovered  inadvertently  or  otherwise  on 
Federal  Lands,  managed  by  those  Federal  Agencies  such  as  the  Bureau  of 
Land  Management,  U.S.  Forest  Service  and  the  National  Parks  Service. 

FURTHERMORE,  the  Senate  Committee  On  Indian  Affairs  must  Act  in 
Good  Faith,  in  order  to  secure  a  realm  of  long  over  due  Justice,  necessary  for 
the  Preservation  and  Protection  of  Indian  Cemeteries  and  or  Burials,  with  the 
understanding  that  our  Ancestor's  are  not  the  Anthropologist  or  Archaeolo- 
gist Prehistoric  People,  but  are  Grandfather's,  Grandmother's,  Aunts  and 
Uncles,  relatives  of  Contemporary  Native  American  Indians,  that  should  be 
left  where  they  have  been  laid  to  rest  with  Traditional  Respect. 

THEREFORE  LET  IT  BE  STATED  CLEARLY,  that  the  Senate  Commit- 
tee On  Indian  Affairs  should  in  a  manner  of  respect  install  such  legal  factor's 
relevant  to  the  Preservation  and  Protection  of  ALL  NATIVE  AMERICAN 
INDIAN  CEMETERIES  and  or  BURIAL  SITES,  within  the  text  of  the 
Native  American  Graves  Protection  and  Repatriation  Act  of  1990,  so  as  to 
where  those  Sovereign  Nations  of  the  Native  American  Indian  will  know  that 
the  United  States  Government  is  upholding  it's  TRUST  OBLIGATION, 
TREATY  OBLIGATION,  in  a  GOVERNMENT  to  GOVERNMENT 
manner  as  so  declared  under  Article  VI  of  the  United  States  Constitution. 

AND  LET  IT  BE  FINALLY  STATED,  that  the  Senate  Committee  On 
Indian  Affairs  does  endorse  the  Tradition  and  Traditional  Belief  of  those  Sov- 
ereign Nations  of  the  Native  American  Indian,  so  that  a  Legal  Manner  can  be 
established  within  the  Native  American  Graves  Protection  and  Repatriation 
Act  of  1990  for  the  Preservation  and  Protection  of  ALL  INDIAN 
CEMETERIES  and  or  BURIAL  SITES. 


festern  Shyosftone  Historic  Preservation  Society 
Testimony  Of: 

claw,  ^-^l 

Larry  KibDy,  ProgramDirector 

Western  Shoshone  Historic  Preservation  Society 

Page  Four 


291 


115'QO' 
41°07'30" 


292 


. _ 

County 

mr/m 

Wiidiit 

__  i 

Wrldsrf 

<Wi*£. 

Indian  i 

U>) 

tnterata 

l^J 

US   H.| 

© 

Stait  H 
County 
Fuiest  F 

VI 

ForMl  T 

_^ „= 

Second* 



Improve 

J    4WD 

Ummprc 

o 


ISBN  0-16-052459-8 


9  780160"524592 


90000